COUNTY LAWYER NEW YORK
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Federal Re-entry Programs in the Southern and Eastern District Courts of New York: Creative Approaches to Offender Recidivism
GEDs, and do community service until employed. It takes between one and two years to complete the STAR program, but participants can remain in the program for longer periods of time.
By Laury A. Betha, Esq.
In 2002, in an effort to reduce recidivism rates, the Eastern District of New York launched an experimental program involving supervised re-integration of released federal offenders into the community. Currently, Judges Dora Irizarry and John Gleeson, and Magistrate Judge Steven Gold supervise these programs.
In 2012, the Southern District of New York initiated a similar program, supervised by District Judge Harold Baer, a former president of NYCLA, and Magistrate Judge Harold Pittman. Both the SDNY and EDNY programs have achieved impressive results, but are threatened by recent cuts to the budget of the federal judiciary. The underlying premise of the re-entry programs is collaboration – a team approach to assisting released offenders to reintegrate into their communities and society at large. The re-entry programs involve intensive supervision, over a short period of time, that address the whole person rather than just the crime. The main goal is keeping the offender out of any further criminal trouble.1
Eastern District of New York (EDNY) STAR Program Since 2005, EDNY Judge Dora Irizarry has run a supervised reentry program for drug offenders. The drug court program began in 2002 under the late Judge Charles P. Sifton. In that same year, the program was re-named STAR (Supervision Treatment and Re-entry). STAR is designed to provide “the kind of structure, intensive supervision, accountability, drug and mental health treatment, educational, vocational, and employment assistance that will give addicted offenders a better chance of leading a drug-free and law-abiding life than they would otherwise.”2
While the evaluation by the Federal Judicial Center has not been made public, the early findings are that the recidivism rate is 10 percent for STAR participants versus 15 percent for those not in the program. Also, Judge Irizarry provided statistics that suggest that as much as a half-million dollars in savings may result from the use of federal drug court programs instead of incarceration.
Participants in STAR are offenders whose “drug use led to criminal activity” says supervising probation officer Nella Yalenovic. The participants have either completed their sentences, and are on supervised release or have been admitted to the program as an alternative to incarceration. Judge Irizarry, Probation Officers Nella Yalenovic, Christopher Wodzinski, and Yolanda Diaz, federal defenders, Lem Kamdang, Esq, and Mildred Whalen, Esq, and staff from drug treatment programs meet with the offenders in the courtroom the first Tuesday of every month for the purposes of progress review. The key components of the program are education, obtaining a job, drug treatment, cognitive behavioral therapy, and community service. The idea behind the program is to decrease recidivism. Judge Irizarry reported that STAR partners with Daytop Village “in a significant way” for the purposes of drug treatment programs. Daytop Village has “accommodated” the STAR participants by having Saturday meetings that do not interfere with participants’ work schedules. The key to success of the STAR program, which is now unfunded, is the partnerships with community programs which are supported by Medicaid and other public insurance programs. Other community based drug treatment programs include the Hope Program, and 820 River Street. According to Mr. Wodzinski, the 820 River Street program is based on one similarly named in “Upstate New York.”
The incentive for participation is that successful participants can get as much as four years removed from their supervised release. Ms. Yalenovic reported that successful participants complete drug treatment, are involved in an educational component such as getting their
To graduate, the participants must have 12 consecutive months of sobriety. The Chief of Federal Probation for the EDNY, Eileen Kelly, states “the goal of the program is abstinence.” “As long as the participants are willing to remain in the program then they can stay.” It may take longer than two years to get 12 months of sobriety. When there is a relapse, the offenders are sanctioned with graduated consequences such as more meetings with their probation officers, home confinement, or for severe infractions, incarceration. Remaining in the program or termination are judicial decisions not subject to appellate review. (see infra, Statement of Reasons for Accepting Deferred Prosecution Agreement Dismissing Charges Entirely, Gleeson, J.).
On June 4, 2013 from 9:30 until 11:30 a.m., I observed the STAR program in Judge Irizarry’s courtroom. There were 11 offenders who were a mix of alternative to incarceration and post-release supervisees. One person graduated from the program and has now finished his federal sentence entirely. The Chief Judge of the EDNY, Carol Bagley Amon, present at the graduation, praised the graduate, saying that he was an “inspiration to all.” She noted that this program was not “part of the official duties” for Judge Irizarry, the federal defenders, or the probation department demonstrating the commitment that the federal courts have to reducing recidivism.
The other 10 are in various stages from the first day in the program to several months in the program, and are well on their way to completion. Many have obtained jobs, have been sober for months, and are involved with their families. Some are still working toward sobriety and employment. Movement toward the educational goals of obtaining a GED, or completing college courses, is still a challenge for the participants. Competing family and work responsibilities can interfere with accomplishing educational goals. However, most importantly, there were (See Recidivism on Page 14)
Volume 7 / Number 24
I N S I D E
Speaking Tip ..................2
Met the New Officers and Directors.........................3
Meet the New Foundation Board Members .............6
New NYCLA Dues Structure.........................9 T A B L E O F C O N T E N T S Book Review.........................................6 CLE Institute.........................................4 Criminal Courts Manual .....................13 Electronic Research Center CLEs ......10
Ethics Hotline......................................11 Health Insurance ................................12 High School Essay Contest Winning
Submission..........................................13 Library Notes ......................................10 Long-Term Care Myths ......................12 Meet the New Foundation Board
Members ...............................................6 Message from Barbara Moses, NYCLA
President................................................3 Message from Lewis S. Tesser,
President of the NYCLA Foundation ...6 Negotiation............................................2 New NYCLA Dues Structure ...............9 New Officers and Directors ..................3
Recent Events .......................................8 Recidivism.....................................Cover
Speaking Tip .........................................2
What’s Tweeting .................................11
July/August 2013 / The New York County Lawyer
Know Thyself: Styles and Tactics at the Negotiation Table By Clara Flebus, Esq.
“A negotiation is an interactive communication process that may take place whenever we want something from someone else or another person wants something from us.”1 People negotiate every day in their personal and professional life, whether or not they are aware they are doing it, without the help of lawyers or other agents. As a result, people develop negotiation styles which are generally based on personality, self-identification, attitudes derived from family, gender, culture and experience, and preconceptions about the process. At the negotiation table, some people may behave more cooperatively, others may adopt a more competitive stance, still others may act more pragmatically. To become successful negotiators, lawyers should be aware of their own basic dispositions. However, no matter what tendency or disposition a lawyer may have, she can help clients achieve better results in negotiation through training and experience.
In preparation for negotiation, lawyers should carefully analyze each bargaining situation and choose a style, or a mix of techniques, that is best suited to achieve the clients’ goals. In addition, lawyers may enhance their skills as negotiators by becoming familiar with the phases of the negotiation process, which, at a minimum, include relationship building, information exchange, bargaining, and commitment. A strategic approach to negotiation requires planning ahead what lawyers, and their clients, will say or do at each stage of the process.
Negotiation Styles The three most common styles used by lawyers when negotiating are: competitive, problem-solving, and compromising. Competitive bargaining focuses on maximizing one’s gain over that of the negotiating counterpart. The negotiation is viewed as win-lose game where one party’s gain is the other side’s loss.2 By contrast, problem-solving is based on collaborating with the other side to satisfy both parties’ interests and goals. In this type of negotiation, also called integrative or win-win bargaining, a party seeks creative solutions to maximize the gain for both sides.3 The third style, compromise, involves trading off some of what a party wants in order to get at least something. In this vein, the compromising negotiator considers not only his or her gain, but also what the other side desires in a sort of give-and-take fashion.4 Compromising, however, is often less effective than exploring options created through problem-solving. As such, it is better used as a tool to find a quick solution when the time is short or as a supplement to the other styles.
As an example, if the object of a negotiation were a blueberry pie, the competitive bargainer would aim at dividing the pie so as to get the larger portion. The problem-solving negotiator would try to increase the size or value of the pie by adding more filling, so that both sides could gain more and feel their solution is fair to both. Meanwhile, the compromiser might consider giving up some of the filling, even though she loves blueberries, and accepting more crust, if that would make the other side more amenable to reaching an agreement.
Matching Styles to Situations A helpful method to predict the effectiveness of negotiation styles is analyzing every bargaining situation by asking your client: (a) how important are the issues involved; and (b) how important is the relationship between the parties to achieve their respective goals in the future.5 Typically, in market-mediated transactions such as home, car, and land sales between strangers, the stakes are considerably more important than any prospective relationship.6 A predominantly competitive style can be effective in this type of negotiation, where the focus is on a party’s gain, without particular concern about the resulting relationship. A much more complex situation arises when both the issues at stake and the future relationship between the parties are important. This typically occurs in disputes involving employment, partnerships, joint ventures, long-term supplier relationships, etc.7 In such situations, the most effective negotiation styles would be problem-solving or compromise. Thus, negotiators who are naturally competitive should be aware that bargaining too hard over positions without regard for the other side’s interests and feelings may result in no agreement, or may poison future relationships with regrets or recriminations about the deal. As a final note, assessing a bargaining situation is also critical in anticipating what styles and techniques will likely be engaged by the negotiating counterpart. Relationship Building After choosing a negotiation style, or a mix of techniques, lawyers should focus on how to greet the other side. Establishing rapport with the parties at
the table is perhaps the most important aspect of the process because it facilitates communication. “Schmoozing” and small talk are helpful to dispel initial tension. This is not a novel concept, but applying it might be less intuitive when parties stand on opposite ground. Generally, we tend to like and trust people with whom we have things in common. Thus, a good method of building rapport is finding mutual interests, passions, background experiences, or groups, such as alumni associations and clubs, with which both parties identify. Engaging the other side in a conversation about similarities and connections will establish a positive atmosphere early in the negotiation.8 Information Exchange In this phase, lawyers should test their assumptions about the other side’s needs,
“Act As If:” A Tip for Attorney Persuasive Power
By Maria Guida
Business speaking is sometimes ineffective, because speakers unnecessarily fear being perceived as “phony.”
As an attorney, if your business speaking lacks enthusiasm, it may be because you fear that using a higher energy level is dependent upon your experiencing a certain emotion. This can cause a “humdrum demeanor”: avoiding the kind of energy for speaking that truly engages your clients and prospects (and jurors).
Adopt the attitude that actors take: a specific feeling does not have to be present in order for you to behave a certain way. Acting “as if” you feel or think a certain way is the surest way to project the qualities you choose (poise and passion, for example) and increase your persuasive power. Stanislavsky (the great Russian director and teacher) called this the “magic if.” Shakespeare was advising the same thing when he wrote, “Assume a virtue if you have it not.”
Don’t wait for a feeling of happiness before smiling, for example. With the
act of smiling, you can “act as if” you are happy.
Behavior can certainly induce a feeling; actions and feelings go together. Do remember that feelings are not subject to direct command, but behavior is subject to direct command. Therefore, behaving a certain way, whether one “feels” that way or not, is paramount. Behavior is king, particularly when your prospects and clients are watching.
Finally, a second quote from Stanislavsky has relevance for your business speaking: “Show me what a person DOES, and I’ll show you who he/she IS.”
Who do your prospects and clients perceive YOU to be? As an attorney, your speaking behavior holds the key.
Maria Guida is a speaking strategist/coach at major law firms and law associations, as well as a corporate and television spokesperson. As an actor on Broadway, TV, and film, she has worked with Paul Newman, James Earl Jones, and Kevin Kline. Maria can be reached at 718-884-2282 or via email at firstname.lastname@example.org.
and communicate their own needs. To avoid learning too little, or revealing too much, attorneys should determine what they want to know, what they wish to divulge, and what they prefer to keep private. In this phase, there are few general tips to remember: (a) gather information about the other side’s interests, issues, and perceptions by using active listening techniques that involve asking questions and paraphrasing the response to demonstrate your understanding of what a person said;9 (b) provide pertinent information regarding your clients’ interests and concerns, as these factors may be the real key to a satisfying and realistic negotiated solution;10 and, (c) if you elect to reveal a bottom line, do not do so prematurely. Remember, skilled negotiators probe first, and disclose later; information about what a counterpart wants provides leverage.
Competitive Bargaining At the bargaining stage, parties make offers, counter-offers, and concessions. Lawyers should understand bargaining tactics to maximize the benefits of negotiation and not be caught unprepared. The most common competitive or “hard-bargaining” tactic is making extreme demands followed by small, slow concessions. An ambitious initial demand has the effect of setting the perceived bargaining range. However, this tactic has the disadvantage of reducing the probability that any deal will be reached if it only causes protracted haggling. A variation consists of making a smaller demand after the extreme one was refused. As the second demand may seem reasonable by contrast, a party may feel compelled to accept it to reciprocate the gesture of withdrawing the first demand. Both versions of this tactic can be countered by researching and bringing objective information to the table. Another bargaining tactic is to eschew presenting a counter-offer in order to compel a party to bid against herself. This can be accomplished either by stating that the offer is inadequate and requesting a better one, or by waiting in silence until the other side makes another offer simply to avoid feeling uncomfortable. As Alexander Theroux noted, “Silence is the unbearable repartee.”
Commitment tactics can be a source of hard bargaining; a course of action that limits the choices of one party in a way that seems credible and irreversible will force the other side to be accommodating. However, there is a risk that no deal will be made if accommodation is not feasible. In this regard, take-it-or-leave-it offers are also risky. If the offer is rejected, the negotiation may be over; if the negotiation is not over, the tactic will sacrifice credibility. Take-it-or-leave-it tactics often can be neutralized simply by making some other offer.
Another common hard-bargaining tactic that can be employed in a team setting is playing “good cop, bad cop.” In this classic ploy, one negotiator acts as the reasonable person, while the other on the same team pushes for unreasonable concessions. Transparent competitive tactics such as this one, while often seen in legal drama, are not highly successful as a rule. However, this and other tactics such (See Negotiation on Page 15)
July/August 2013 / The New York County Lawyer
MESSAGE FROM BARBARA MOSES PRESIDENT OF NYCLA Dear Readers,
NYCLA has never been afraid to speak out on significant issues affecting access to justice—including funding for the courts, indigent criminal defense, and civil legal services.
In 2011 and 2012, NYCLA’s Task Force on Judicial Budget Cuts examined the impact of $170 million in cuts on the New York judiciary, as well as deep cuts to the federal judicial budget. We issued a series of reports detailing the real-world impact of those cuts on both the courts and the public. This year, New York’s already overloaded state court system continues to struggle with a bare-bones budget, which has led to shorter courthouse hours, longer waits for trial dates, and backups in clerk’s offices across the state.
The federal courts, meanwhile, are reeling from the effects of sequestration, including reduced staffing for Pretrial Services, which supervises defendants awaiting trial, and the Probation Department, which supervises individuals sentenced to probation or on supervised release. These reductions present both a public safety issue and a false economy. In the words of Chief Judge Carol Bagley Amon of the Eastern District of New York, “If the [Pretrial Services] agency
Barbara Moses President, New York County Lawyers’ Association
cannot do its job, the costs are externalized on our community.” Funding for indigent criminal defense has also been slashed. The Federal Defenders of New York—charged with the representation of criminal defendants who cannot afford private counsel in the Southern and Eastern Districts—have been forced to furlough attorneys and put off trial dates.
Through our Task Force on Judicial Budget Cuts, NYCLA is once again examining the ability of our state and federal courts to carry out their constitutionally mandated functions in light of continuing budget challenges. Through our recent forum commemorating the 50th anniversary of Gideon v. Wainwright, NYCLA took a probing look at our nation’s still-unfulfilled promise of
justice for all, regardless of wealth. And through our pro bono programs and committee work, NYCLA is deeply involved in helping poor and near-poor New Yorkers obtain the essential legal services they need when faced with consumer debt problems, housing emergencies, and other legal crises.In the months to come, NYCLA’s new Task Force on Meeting the Challenge will examine New York’s most recent experiment in closing the justice gap: the 50-hour rule, which will require bar applicants to certify that they have performed 50 hours of pro bono legal services before they can be admitted. At the same time, the task force, working together with staff and volunteer leaders, will develop new pro bono opportunities for NYCLA’s law student and law graduate members. The continuing struggle to improve access to justice is difficult and sometimes discouraging, but it is also central to NYCLA’s mission. I look forward to working on these issues in the months to come.
Barbara Moses President New York County Lawyers’ Association
NYCLA Inducts Officers and Directors
At NYCLA’s Annual Meeting on May 23, NYCLA inducted Officers and Directors to its Board of Directors. Along with Barbara Moses who was inducted as President and featured in last month’s New York County Lawyer, Lewis F. Tesser was inducted as President-Elect, Carol A. Sigmond as Vice President, Stephen C. Lessard as Treasurer, and Donald M. Zolin as Secretary.
The following Directors were also inducted, and will each contribute something unique to help move the Association forward in its mission. We invite you to get to know these new Board leaders:
Jai K. Chandrasekhar NYCLA Member since 2001 Chandrasekhar, who has been practicing law for 12 years, practices primarily in securities litigation on the plaintiffs’ side. He currently serves as a senior counsel at Bernstein Litowitz Berger & Grossmann LLP. As a NYCLA Board member, he hopes to help the Association strengthen its vital work of providing professional resources to lawyers from all segments of the bar and encouraging lawyers to represent needy New Yorkers. He notes that this mission is more important now than ever in light of the weak economy and the related structural changes in the profession. Hon. Helen E. Freedman Joined NYCLA in 1989 Judge Freedman has been on the bench nearly 35 years, and has been on the Appellate Division, First Department since July 2008. As a Board member, she would like to fur-
ther NYCLA’s work in urging restoration of funds to the judiciary budget, review NYCLA’s position concerning election of judges, further NYCLA’s leading role in supporting judges who are unfairly attacked or criticized, and encourage NYCLA to explore ways to assure that no one is wrongfully convicted. She would also like to work toward increasing membership in NYCLA.
Hon. Emily Jane Goodman NYCLA member since 1969 Judge Goodman was elected in 1983 and served 29 years in Civil Court, Criminal Court, Supreme Court (Criminal), and Supreme Court (Civil), leaving in 2012. As a NYCLA Board member, she is looking to help improve New York State’s courts, in particular, helping to restore judicial independence, which she feels at this time is seriously threatened.
Andrew T. Hahn, Sr. NYCLA member since 2011 Hahn, who currently is a litigator and partner at Duane Morris LLP, has been practicing law for 27 years. As a NYCLA Board member, he hopes to help increase the diversity of the membership.
Hon. Barbara S. Jones Joined NYCLA in 2013 Judge Jones served as a judge for almost 17 years in the U.S. District Court for the Southern District of New York. She is currently a partner at Zuckerman Spaeder LLP where she is focusing on corporate com-
pliance issues, and internal investigations, and service as a court-appointed monitor or special master.
Roberta A. Kaplan NYCLA member since 2013 Kaplan practices commercial litigation at Paul, Weiss, Rifkind, Wharton & Garrison LLP where she is a partner. She has practiced for 20 years and as a Board member will look to do what she can to facilitate and improve the laudable programs and goals of NYCLA. Ronald J. Katter NYCLA Member since 1988 Katter, who has been practicing law for 27 years, founded the Katter Law Firm in 1991 to represent personal injury plaintiffs in claims to recover money damages for the injuries they suffer through negligence or abuse. He represents clients in all five boroughs of NYC and in Westchester and Nassau Counties. As a Board member, his goals include advocating on behalf of solo and small-firm practitioners, and helping NYCLA employ social media and live sessions to recruit new members and to help train new leaders from the membership.
Carolyn A. Kubitschek Joined NYCLA in 2003 Kubitschek, who practices civil rights, family, and Social Security law at Lansner & Kubitschek, has been practicing law for 39 years. As a Board member, she is looking to
(See Officers and Directors on Page 14)
COUNTY LAWYER Barbara Moses President
Sophia J Gianacoplos Executive Director
Toni Valenti Director of Marketing and Membership Development
Ariella Greenbaum Editor Senior Communications and Social Media Manager
New York County Lawyer is published by Long Islander Newspapers under the auspices of the New York County Lawyers’ Association. For advertising information, call 631-427-7000. Mailing address: 149 Main Street, Huntington, NY 11743. Copyright © 2013 New York County Lawyers’ Association. All rights reserved. New York County Lawyers’ Association grants permission for articles and other material herein or portions thereof to be reproduced and distributed for educational or professional use through direct contact with clients, prospective clients, professional colleagues and students provided that such use shall not involve any matter for which payment (other than legal fees or tuition) is made and provided further that all reproductions include the name of the author of the article, the copyright notice(s) included in the original publication, and a notice indicating the name and date of the Association publication from which the reprint is made. Subscription rate: $10.00 per year for non-members New York County Lawyer is published monthly (except January and August) for $10 per year by New York County Lawyers’ Association, 14 Vesey Street, New York, NY 10007. Periodicals postage paid is mailed at New York, NY and additional mailing offices. POSTMASTER: Send address changes to: New York County Lawyer, 14 Vesey Street, New York, NY 10007-2992. USPS #022-995 ISSN: 1558-5786 $10.00 of membership dues is deducted for a one-year subscription to the New York County Lawyer.
Photo Credits Dana Burr Ariella Greenbaum
July/August 2013 / The New York County Lawyer
Bridge the Gap 1: A Program for Newly Admitted Attorneys Consecutive Fridays, July 12 and 19; 9 a.m.-5 p.m. 16 NY Credits: 3 Ethics; 6 Skills; 7 PP/LPM; Transitional and Non-transitional; 16 NJ Credits: 3 Ethics; 13 General This program will satisfy the first or second year MCLE requirements for newly admitted attorneys in New York State. It also serves as a refresher course for more experienced attorneys looking to brush up on their skills or learn about a new area of the law. NOTE: New Jersey credit will be given for this program, but it will not satisfy the 15 credits in 5 of 9 specified practice areas required for newly admitted attorneys. New Jersey Bridge the Gap Monday and Tuesday, July15 and 16; 9 a.m.-5 p.m. 15 NJ Credits in 5 of 9 Specified Practice Areas This program is specifically designed for newly admitted attorneys in New Jersey. It will satisfy the requirement that newly admitted attorneys take 15 credits in 5 of 9 specified practice areas.
Summer at the CLE Institute
Bridge the Gap 2: A Program for Newly Admitted Attorneys Consecutive Fridays, August 2 and 9, 2013: 9:00 AM – 5:00 PM 16 NY Credits: 3 Ethics; 6 Skills; 7 PP/LPM; Transitional and Non-transitional; 16 NJ Credits: 3 Ethics; 13 General This program will satisfy the first or second year MCLE requirements for newly admitted attorneys in New York State. It also serves as a refresher course for more experienced attorneys looking to brush up on their skills or learn about a new area of the law. NOTE: New Jersey credit will be given for this program, but it will not satisfy the 15 credits in 5 of 9 specified practice areas required for newly admitted attorneys.
Ethically Creating an Innovative Law Practice in the Recovery* Friday, August 2, 2013; 9 a.m.-5 p.m. 8 NJ Credits: 3 Ethics; 2 LPM; 3 Skills; Transitional and Non-transitional; 8 NJ: 4 Ethics; 4 NJ Law Practice Management Reinvent your practice, reconnect with clients and redefine the way you
showcase your legal talent in this interactive full-day program. Attendees will learn: Key techniques for building relationships; Effective and ineffective ways to leverage social media; How to ethically use publishing in print and online to enhance your practice; Trusted techniques for establishing a stronger professional reputation; Vital tools for tapping the power of technology to transform your practice; Navigating the pitfalls of technology… and more. *Also Day 1 of Bridge the Gap 2 Interested in a Program, But Can’t Make it to the Live Lecture? NYCLA’s CLE Institute has formed a strategic partnership with Lawline.com, a leading distributor of online content, to stream live webinars of many of our live programs. Be sure to check the nycla website for a list of upcoming webinars, or visit the NYCLA branded on-demand and live webinar page at http://nycla.furthered.com/cle/index.php
NYCLA’s CLE Institute courses now available for New Jersey MCLE Credit
New York County Lawyers’ Association’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the State New Jersey..
Please note that Tuition Assistance is available for qualified attorneys for live programs offered by the CLE Institute. Check our website at www.nycla.org for more information and how to apply for Tuition Assistance. Check our website for course details, faculty, complete program descriptions and pricing. Be sure to check our website for a complete listing of programs.
July/August 2013 / The New York County Lawyer
July/August 2013 / The New York County Lawyer
MESSAGE FROM LEWIS S. TESSER PRESIDENT OF THE NYCL A FOUNDATION
What Does Being a Lawyer Mean to You? This spring I attended a law school graduation. Not only did my daughter and her classmates receive a degree, but the Chief Judge of the State of New York, Hon. Jonathan Lippman, also received an honorary degree. In fact, the Chief Judge was the keynote speaker. He encouraged the new graduates to be mindful of their responsibilities to serve the justice system by, for example, helping the disadvantaged and the needy. He noted that agencies such as Legal Aid turn away as many as 90 percent of the individuals seeking their help and that we, as a just society, are dependent on equal access to justice. Do Judge Lippman’s remarks pertain to us? In last month’s column, we asked, “Why did you become a lawyer?” A few of the responses: - “I thought it would be intellectually challenging.” - “My grandfather and father were attorneys.” - “To satisfy my intellectual curiosity and use the knowledge and experiences gained as a springboard to effectuate change.” - “My reasons are deeply personal. My dad was falsely accused.... A team of lawyers took his case and stopped the persecution. I never wanted to be vulnerable myself and [I wanted] to help those who might need it.” As many of you know from my CLE courses, I believe that lawyers become
the necessary energy (especially in summer) to effectuate our plans. A call to action is frequently helpful.
lawyers for noble reasons and that, as a demographic, lawyers are good people. Your responses did not disappoint. We are not only lawyers but also members of the first major bar association in the country to admit “any attorney who had met the rigid standards set up by law for admission to the bar.” One of NYCLA’s founders, Benno Lewison, observed that the Association stood for “the promotion of reforms in the law [and] the facilitation of the administration of justice....” To this day, NYCLA is a progressive, inclusive and action-oriented organization. What’s next? From the Cup to the Lip Was it necessary for Judge Lippman to exhort new graduates to do good? Is the concept of service to a higher calling implicit in the license we receive and hang on our walls? Is that enough? Do good motives and good character = good deeds? No, of course not. Conduct is as vital as intent. And not only is it true that “there’s many a slip twixt the cup and the lip,” it is also true that despite our good intent, we often find it difficult to rally
NYCLA is here to assist us assist ourselves and others. The NYCLA Foundation is a major component of our ability to continue our mission. The Foundation is the fundraising arm of NYCLA and I am honored I was elected to serve as its President this year. HERE’S ONE THING THE FOUNDATION SUPPORTS- Project Restore, a program that for years has helped provide pro bono counsel to ex-offenders who may have been inappropriately denied employment licenses. The Foundation has many other projects (which we’ll highlight in future articles). PLEASE LET ME HEAR FROM YOU What does being a lawyer mean to you? Write to me at Ltesser@tesserryan.com. I’m told that I’ll have this column for a while. Let’s have a discussion. I’m happy to include some of your answers and comments in future articles. And in the meantime, please go to www.nycla.org and choose “Giving to NYCLA.” It doesn’t matter how much you give. If you care to, send an email to me saying “I’ve supported the Foundation.” Esprit de corps!
Meet the New Foundation Board Members At the NYCLA Foundation Annual Meeting on April 8, Hon. Betty Weinberg Ellerin, Mary Gail Gearns, and Brian D. Graifman were elected as new Foundation Board members and Stewart D. Aaron, Sylvia DiPietro, Susan Lindenauer, and Lester Nelson were re-elected to three-year terms. The NYCLA Foundation is led by Chair, Vincent Chang; President, Lewis F. Tesser; Vice President, Richard A. Williamson; Secretary, Martha Cohen Stine; and Treasurer, Scott Mitchell Berman.
Hon. Betty Weinberg Ellerin Member of NYCLA since 1953 Hon. Betty Weinberg Ellerin spent 29 years as a judge — first in the Civil Court and then as a city-wide administrative judge, in the Appellate Division. She was the first woman appointed as Deputy Chief Administrative Judge of the State of New York for the New York City Courts. She was also Presiding Justice and Additional Justice of the Appellate Division of the Supreme Court of the State of New York, First Department. Since she retired from the bench over seven years ago, she has served as senior counsel in Alston & Bird LLP’s Litigation & Trial Practice Group. She is very concerned about judicial independence and serves as co-chair of the NYCLA Task Force on Judicial Independence. Mary Gail Gearns Joined NYCLA in 2005 A Partner at Bingham McCutchen LLP, Gearns practices in the firm’s Financial Services area where she focuses on securities regulatory and enforcement matters and litigation. She has more than 20 years of litigation experience, and she also advises clients on compliance and risk management issues.
Brian D. Graifman Member of NYCLA since 1988 Graifman is the CoChair of NYCLA’s Supreme Court Committee, and has been active for many years on the Federal Courts Committee and the Appellate Courts Committee. Counsel at Gusrae Kaplan Nusbaum PLLC, he handles complex litigation and appeals, often intersecting areas of arbitration, securities, regulatory disciplinary defense, and state-federal jurisdiction. He says that he has much to thank NYCLA for, and expects to give back by participating on the Board of the NYCLA Foundation, the fundraising arm of NYCLA.
July/August 2013 / The New York County Lawyer
Book Review Good Counsel: Meeting the Legal Needs of Nonprofits by Lesley Rosenthal By William M. Tiersten, Esq.
Say that you are a long-time city dweller who just bought a new home in suburbia and you want to learn about gardening, then you find a book called Gardening for the Transplant: A Guide for the New Homeowner. You exclaim to yourself: “Eureka. This has got to be the right book, it sounds perfect.” Based on this impulse, you buy it and you begin to read it carefully and then slowly it dawns on you that it isn’t what the title promised; in fact, it isn’t a very good or useful book. I am delighted to say that this is the opposite of the experience I have had with Lesley Rosenthal’s practical and inspiring new book Good Counsel: Meeting the Legal Needs of Nonprofits.
Some personal disclosure is in order. I am a newly minted lawyer who spent decades working as a content producer for a wide variety of nonprofits. Shortly before a friend brought Ms. Rosenthal’s book to my attention, I had begun a new venture based on providing cost-effective legal consulting services to nonprofits. So, when I saw the title of the book I got excited and I read it. Then I read it again. Then I began marking up my copy to make notes for a presentation to prospective clients. Then, with existing clients, I found myself frequently going back to the book and using it as a practical guide, even a playbook.
Over 8,000 patents granted Over 15,000 trademarks obtained Over 45 years of experience
Beyond that, the book is inspiring: a call to arms for lawyers, executives, board members and donors to face legal challenges,come to the aid of a large sector of the economy (11 percent it says here), and do good work for good organizations. On top of that, the book is written as an engaging “virtual tour” through the nonprofit organization with stops in all the many areas where legal understanding and advice is needed.
“Every one of these organizations faces legal issues, and yet most do not have regular access to counsel,” notes Ms. Rosenthal, who leads Lincoln Center’s legal efforts. And despite the business law concerns of any corporation and the particular needs of nonprofits, they tend to have a culture that is somewhat reticent about – even allergic to – the need for legal assistance, or lawyers. After all, people who feel they are doing good, perhaps at the expense of doing well, tend to think that legal issues shouldn’t be a problem. But alas, tax exempt does not mean law exempt and more and more nonprofits are running into serious issues. Ms. Rosenthal provides us with several detailed cautionary case studies ranging from vaunted giants like the Smithsonian Institution to seemingly innocent ventures like a string quartet. And as for today’s news: Does Rutgers Athletics ring a bell?
or e-mail us at email@example.com
Through her virtual tour of the nonprofit office, Ms. Rosenthal engagingly provides detailed descriptions and advice from the boardroom, to contracts and intellectual property, through fund-raising and human resources. In each chapter, we are reminded of the need for oversight, education, strong working relationships with staff and the sine qua non for nonprofit practitioners: a passion for the organization’s mission. She always ends chapters with detailed work plans and refers us to a companion website that provides both more detail and further resources.
Ms. Rosenthal feels that “outside or inhouse, paid or volunteer, there should be one person – a general counsel – in charge of overseeing the legal affairs of most tax-exempt nonprofit corporations.” And as general counsel, this person indeed needs to be a generalist. Particularly in this age of specialization, a generalist can guide a nonprofit through her own efforts and by “selecting, supervising and coordinating outside counsel where necessary.”
Throughout, she combines easy-to-read practical advice with good humor and the passion for the subject that she brings to it and hopes to inspire. She ends the book with three chapters meant specifically for the aspiring nonprofit lawyer. We all have heard about the need to find a niche for one’s professional services. How much better yet when that niche stems from personal conviction and corresponds to a societal need. Bill Tiersten Esq., a member of NYCLA’s Nonprofit and Law & Literature Committees, also holds a Master’s in English from the University of Chicago. He is building a practice as a nonprofit specialist.
July/August 2013 / The New York County Lawyer
RECENT EVENTS NYCLA Holds Annual Meeting On May 23, NYCLA held its 2013 Annual Meeting and Induction of Officers and Directors. The Law-Related Education and Immigration and Nationality Committees were honored with awards, Barbara Moses was inducted as President, Stewart Aaron gave a musical performance, we heard from very special guests, and much more.
(right) New NYCLA President Barbara Moses gives her first remarks as President.
Peter Dizozza (left) and Immediate Past NYCLA President, Stewart Aaron (right), welcome new NYCLA president, Barbara Moses, with a special song written to the beat of, “Leaving on a Jet Plane” by John Denver.
Hon. Sheila Abdus-Salaam (center) receives gifts of appreciation from former NYCLA President, Catherine A. Christian (left) and NYCLA Executive Director, Sophia Gianacoplos (right).
NYCLA incoming Directors gather with NYCLA’s new President at Annual Meeting.
Minority Judicial Interns Welcomed at Reception New interns in NYCLA’s Hon. Harold Baer Jr. and Dr. Suzanne Baer Summer Minority Judicial Internship Program celebrated the 2013 program kick-off at a reception on May 15. Interns Nida Alvi (second from left) and Khalil Nobles (third from left) from Cardozo, Versaly Rosales from CUNY (fourth from left), Stephanie Lin from St. John’s (fourth from right), and Nora Cussy from CUNY (second from right), gather with Hon. Harold Baer Jr. (center), Hon. Debra James (third from right), and Steven Golembiewski of Pfizer Inc. (far right).
Matrimonial Section Honors Senior Court Attorneys of NY County Matrimonial Judges Pictured at the June 3 Matrimonial Section Cocktail Party at Battery Gardens Restaurant in Battery Park are, left to right, Hon. Deborah Kaplan; Joan Levenson, Esq., Court Attorney to Hon. Deborah Kaplan; Lindsay Feinberg, Esq., Court Attorney to Hon. Laura Drager; Charlotte C. Lee, Esq.; Briana Denney; Hon. Lori S. Sattler; Nancy Hobbs, Esq., Court Attorney to Hon. Lori S. Sattler; DrorBikel, Esq.; Hon Saralee Evans; Hon. Ellen Gesmer; Kristen Bebelaar, Esq. Court Attorney to Hon. Ellen Gesmer; Hon. Matthew F. Cooper, and Timothy Corbo, Esq., Court Attorney to Hon. Matthew F. Cooper.
July/August 2013 / The New York County Lawyer
Membership News! NYCLA Dues Structure Updated For the first time since 2007, NYCLA has revamped its membership dues structure. Of note:
• A complimentary year of membership will continue to be offered during the first year an attorney is licensed to practice. • Dues for admitted attorneys practicing for one to two years have been lowered to $75—only $50 if the member joined NYCLA while in law school or before admission to the bar.
• A senior category has been introduced for attorneys who have taken emeritus status with the New York State Unified Court System or who are no longer licensed to practice.
Already a member? New rates will go into effect upon membership renewal. Not a member? Join now at the below rates.
Law-Related Education Committee Honors High School Students Aglaia Ho (center), a student from Stuyvesant High School, was awarded with the first place, $1,000 prize, at the Law-Related Education Committee’s High School Essay Contest Awards Reception on May 14. She is joined by Law-Related Education Committee Chair, Justice Richard Lee Price (second from right); Law-Related Education Committee Members Robert Stern, Esq. (far left) and Lynn Goodman, Esq. (far right); and immediate-past NYCLA President Stewart D. Aaron (second from left).
Nonprofit Counsel and Author Speaks at NYCLA On June 11 author and general counsel for Lincoln Center, Lesley Rosenthal, spoke about how to become a general counsel in a nonprofit organization or a candidate for the board of directors. Attendees also had the opportunity to buy Rosenthal’s newest book, Good Counsel: Meeting the Legal Needs of NonProfits, and get it signed.
10 July/August 2013 / The New York County Lawyer
LIBRARY NOTES To make suggestions about books, databases or other NYCLA Library matters, please contact Dan Jordan, Director of Library Services, by email at firstname.lastname@example.org or by phone at 212267-6646, ext. 204.
The NYCLA Library seeks to be the Lawyers’ Toolbox for members. In addition to all the needed primary source materials, the NYCLA Library has numerous Bankruptcy treatises and form sets available through WestlawNext/ Westlaw Classic, including 45+ treatises from West, the American Bankruptcy Institute and the American Law Institute. Bankruptcy treatises include: Norton Bankruptcy, Law and Practice 3d Ed; The Norton Bankruptcy Dictionary; Chapter 11 Reorganizations, 2d Ed., Chapter 13: Practice and Procedure; Tax aspects of Bankruptcy Law and Practice; Bankruptcy and Domestic Relations Manual; Strategic Alternatives for distressed Businesses; And many more titles concerning the finer points of bankruptcy law.
New York State Library-Attorney Borrower’s Card holders also have access to several treatises on Bankruptcy from CCH/Aspen including: Ginzburg& Martin on Bankruptcy; Bankruptcy Litigation and Practice;
Bankruptcy Litigation Manual; Advanced Chapter 11 Bankruptcy Practice; Ordin on Contesting Confirmation; Strategies for Creditors in Bankruptcy Proceedings; Tax Planning for Troubled Corporations; CCH State Exemptions; And more.
The New York State Library-Attorney Borrower’s Card is available to New York residents who are admitted to practice law in New York. Holders of the card receive no cost, Internet access to many databases, including four meaningful legal databases with extensive primary and secondary source materials. E-mail email@example.com for information and an application to the NYSL-ABC.
Looking for New York legislative history materials? The NYCLA library can assist you in your legislative history/intent project and provide copies of session laws, legislative memoranda, bill jackets and more. Give the NYCLA Library a call at 212-267-6646, x204 or contact us at firstname.lastname@example.org to find out about this NYCLA Library fee-based service.The NYCLA Library can also be of assistance with similar projects for the other 49 states and the federal system.
NYCLA members who have authored or edited published books or articles are asked to submit a copy of their work to the Gladys Glickman NYCLA Authors
Collection, where works by our fellow NYCLA members are on display. Gladys Glickman, who passed away in 2007, was the Contributing Editor to the Matthew Bender/Lexis treatise, Franchising. Gladys Glickman left a major bequest for the benefit of the NYCLA Library, where she spent many hours writing and updating her work. The Glickman NYCLA Authors Collection can be found on the Gladys Glickman Balcony, adjacent to the Digital Resource Center.Please inscribe the title page of your work to NYCLA. To our budding NYCLA authors, how can the library help you?
Looking to donate sets of Law books?The NYCLA Law-Related Education Committee, Dan Jordan (Director of Library Services at NYCLA),and Debra Lesser from the Justice Resource Center will attempt to help you place your unwanted sets with a willing High School Law Program in New York City.Contact Dan Jordan at email@example.com specifying what sets you hope to donate.Most sought sets are McKinney’s/CLS; NYJur 2d; NY Supplement 2d; West NY Digest 4th. 1. The law books must be current within the last 3 years. 2. Shipping arrangements are made between the donor and the donee school in consultation with the DOE and usually require at least four weeks lead time.
3. All acknowledgements regarding the gift are between the donor and donee. 4. There is no guarantee that a willing donee will be found for your offer of a gift.
New Jersey Treatises on WestlawNext/Westlaw Did you know that WestlawNext/ Westlaw, on the Patron terminals in the NYCLA Library, now have access to New Jersey treatises and form books from Westlaw? The titles are:
Commercial Law Form Finder - New Jersey New Jersey Forms Legal and Business (a seventeen volume set) New Jersey Forms: Business & Commercial New Jersey Pleading and Practice Forms (a seventeen volume set) New Jersey Practice Series (30+ treatises: L&T, Wills, Criminal, Family, DUI, etc.)
Interesting recent Reference questions: -A scholar from a foreign University came in to research the Lindy Hop and the law and to look for court records. -Verdict Searches-the value of a broken ankle with no surgery. -Verdict Searches-Seeking experts on meat mincer/kitchen equipment safety. How can we help you and your practice today? Contact firstname.lastname@example.org.
Electronic Research Center CLE Programs July Westlaw: Introduction to Westlaw Next July 10 – 10-11 a.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public
Westlaw: Trusts & Estates Law Research on Westlaw Next July 10 - 11:30 a.m.-12:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public
Lexis: I July 23 – 10:30– 11:30 a.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public Lexis: II July 23 – 12:00 – 1:00 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public
Lexis: Litigation July 23 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public
U.S. Bankruptcy Court Electronic Case Filing System July 24 – 10 a.m.-12:30 p.m. 2.5 MCLE Credits: 2.5 Skills; Transitional (Also NJ) Member: $65 Non-member: $85 Non-legal Staff: $35
Westlaw: What’s New on Westlaw Next July 30 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public
Westlaw: NY Materials Law Research on Westlaw Next July 30 – 3 - 4 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public
August Westlaw: Introduction to Westlaw Next August 7 – 10-11 a.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public
Westlaw: Form Finder & Form Builder on Westlaw Next August 7 - 11:30 a.m.-12:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public
Lexis: I August 9 – 11:00 a.m. – 12:00 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public Lexis: II August 9 – 12:30 – 1:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public Lexis: Litigation August 9 - 2:00 - 3:00 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public
U.S. Bankruptcy Court Electronic Case Filing System August 14 – 10 a.m.-12:30 p.m. 2.5 MCLE Credits: 2.5 Skills; Transitional (Also NJ) Member: $65 Non-member: $85 Non-legal Staff: $35
Westlaw: What’s New on Westlaw Next August 21 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public
Westlaw: Enviromental Law Research on Westlaw Next August 21 – 3 - 4 p.m. 1 MCLE Credit: 1 Skills; Transitional Free and open to the public Using Bloomberglaw.com for Litigation August 29 – 10 - 10:50 a.m. 1 MCLE Credit: 1 Skills; Transitional (Also NJ) Free and open to the public Using Bloomberglaw.com for a Corporate Transactional Practice August 29 - 11:05 - 11:55 a.m. 1 MCLE Credit: 1 Skills; Transitional (Also NJ) Free and open to the public
July/August 2013 / The New York County Lawyer 11
The Committee on Professional Ethics accepts both written and telephone inquiries on ethics matters and provides advisory opinions. For additional information, call the members listed below. July 1-15 Ronald Minkoff 212-705-4837 July 15-31 Joseph Vogel 212-997-7634 August 1-15 Barry Temkin 212-804-4221 August 16-31 David Wirtz 212-583-2699
September 1-15 Glen Schleyer 212-558-7284
September 16-30 Philip Ross 212-421-4000
Please Note: Assignments are subject to change.
Questions to the Hotline are limited to an inquiring attorney’s prospective conduct. The Hotline does not answer questions regarding past conduct, the conduct of other attorneys, questions that are being litigated or before a disciplinary committee or ethics committee, or questions of law. This notation shall not be construed to contain all Hotline guidelines. For a full discussion of Ethics Hotline guidelines, please see the article below, “Guidelines on NYCLA’s Ethics Hotline,” published in the September 2006 issue of New YorkCountyLawyer.
NYCLA In The News A roundup of recent national and local news stories featuring NYCLA and its members
WNYC Radio Brooklyn D.A. Show Criticized June 3, 2013 Recently some people have questioned whether the CBS series about the Brooklyn District Attorney’s office gives prosecutors an unfair advantage. NYCLA’s President, Barbara Moses, commented on this on WNYC Radio, citing the case of Jabbar Collins, who was found guilty of murder in 1995 and released in 2010 after a federal judge vacated his conviction. Collins is now suing Brooklyn D.A. Charles
The New York Center for Neuropsychology & Forensic Behavioral Science
Hynes and other prosecutors, who he accused of unconstitutional actions, for $150 million.“Some of the assistant district attorneys involved in his case were on the first episode of the CBS show and were portrayed in a very favorable light,” said Moses. “If I were Mr. Collins’s attorney, I would be concerned about that.”
HuffingtonPost.com Wedding Trailblazers: The Reverend D Talks Officiating Offbeat Weddings May 28, 2013 In this article about offbeat weddings, the NYCLA Home of Law is mentioned as a venue for one such wedding.
Dr. N.G. Berrill, Director
[ Over 30 Years \ Providing Forensic Consultation to Attorneys & the Courts on Psycho-legal Matters • Criminal Cases: Competency Issues, Criminal Responsibility, Extreme Emotional Disturbance, Risk Assessment, Sex Offender Workups & Dispositional Planning
• Matrimonial & Family Court Cases: Custody/Visitation, Neglect/Abuse, Termination, Delinquency, Family Violence, & Adoptions
• Civil Cases: Competency Issues, Head Trauma, Sexual Harassment, Discrimination, Immigration, & Post-Traumatic Stress Disorders
Comprehensive Diagnostic & Treatment Services 26 Court Street, Suite 1711, Brooklyn, NY 11242 718-237-2127 45 North Station Plaza, Suite 404, Great Neck, NY 11021 516-504-0018 139 Manhattan Avenue, New York, NY 10025 212-280-3706
12 July/August 2013 / The New York County Lawyer
Long-term care issues have been everywhere in the news lately – from stories of people needing these services to how the government is responding. But there is also a lot of conflicting, and even mistaken, information. Misconceptions may have prevented you from including longterm care planning into your retirement portfolio. But long-term care planning can be a critical component to any comprehensive retirement plan. So now is the time to dispel these myths.
Myth #1: I’ll never need long-term care. Most people can’t imagine themselves needing long-term care services. But, the U.S. Department of Health and Human Services indicates that people age 65 face at least a 40 percent lifetime risk of entering a nursing home sometime during their lifetime1. Living a long life may increase your risk of needing long-term care. Isn’t it better to insure against what that risk may do to your family and your financial plans?
Myth #2: Long-term care is only for the elderly. Actually, a surprising amount of longterm care services are provided to younger people. The U.S. Government Accountability Office estimates that 40 percent of 13 million people receiving long-term care services are between the ages 18 and 642. The unexpected need for long-term care could arise at any age for any number of reasons, including illness, or an accident.
The Myths about Long-Term Care
Myth #3: I’ll pay for my own longterm care. In 2012, nursing home costs averaged over $91,000 a year nationally, but in some regions these costs are sometimes twice that amount3. How long can you pay for these expenses without jeopardizing your financial plan or exhausting your savings? It may make good sense to transfer this financial risk just like you do with your homeowner’s insurance or auto insurance. Even if you can afford to pay for long-term care services out of pocket, why would you want to when you can transfer the cost to an insurer for premiums that may total a fraction of the cost of care?
Myth #4: Medicare will cover my longterm care expenses. Medicare does pay for nursing home care, but only for a maximum of 100 days and if the 3-day qualifying hospital stay requirement has been met. In addition, Medicare will only pay as long as you are showing progress toward recovery. Once your condition becomes stable, even if you are not fully well or back to a completely healthy state of being, Medicare rules indicate that benefits will stop. Also, Medicare does not pay for individuals to attend an adult day care or for the room and board expenses at an assisted living facility.
Myth #5: Medicaid will cover my longterm care expenses Medicaid was developed partially to cover long-term care costs for
Americans of any age who need help paying for those services. Medicaid is currently the largest payer of long-term care costs in the United States, primarily for care in nursing homes. However, Medicaid focuses on helping people with limited or minimal income and assets, and in order to qualify for benefits, you have to demonstrate a financial need for help. Qualifying means spending nearly all of your own money on your own care before the government will step in to help. Myth #6: My family will take care of me. The financial, physical and emotional stress that full-time care-giving may place on families can be overwhelming. Many families have struggled to provide care for parents or siblings only to eventually realize that the care required is more than they can provide. The truth is, sometimes the best way for a family to take care of a loved one needing longterm care is to make sure that they have access to professional care. With the advances in home care services, many people needing long-term care are actually able to stay at home, with or near families, and still get the professional care they need. Myth #7: Long-term care insurance covers only nursing homes. Everyone wants to stay at home. Longterm care insurance can offer valuable benefits that may keep you at home for as long as possible. Long-term care
insurance can also help cover the cost of care in other locations, such as adult day care centers, assisted living facilities and hospice care.
With long life comes long-term planning. Make a plan for you and your family today. For more information on long-term care insurance, please contact Thomas A. Martin, J.D., Agent, New York Life Insurance Company at (914) 626-2024.
The purpose of this piece is solicitation of insurance. An insurance producer (agent) may contact you. New York Life Insurance Company long-term care insurance is issued on policy form series ILTC-5000 and INH5000 with a state identifier and edition date. Examples: for Idaho ILTC-5000 (ID) (1001) and INH-5000 (ID) (1001) and for North Carolina ILTC-5000 (NC) (1001) (Rev. 0606) and INH-5000 (NC) (1001) (Rev. 0606) and for Pennsylvania ILTC5000 (PA) (1001), FLTC-5000 MLP (PA) (0503), for Tennessee ILTC-5000 (TN) (1001) and INH-5000 (TN) (1001) and for Texas ILTC-5000 (TX) (0305) and INH5000 (TX) (0305). New York Life Insurance Company, 51 Madison Avenue, New York, NY 10010.
References: 1Health Insurance Association of America.A Guide to Long-Term Care Insurance. 2007. Page 3. 2Health Insurance Association of America.A Guide to Long-Term Care Insurance. 2007. Page 3. 3 New York Life Insurance Company. Survey of Nursing Home Costs. 2012.
July/August 2013 / The New York County Lawyer 13
2013 NYCLA High School Essay Contest: First Place Essay Topic: Should a sports team be punished for the improper conduct off the field of its players or coaches?
individual players that do not affect the performance of the team, and 3) misbehavior of coaches whose actions represent their teams as a whole.
By Aglaia Ho
The first category involves serious misconduct by an individual player that affects the performance of the entire team. This would encompass, for example, drug use. When a player uses performance-enhancing drugs, he affects the outcome of a game. He could miraculously excel during a competition and his performance can make the difference between winning and losing. Significant championships can be unfairly won because of this individual’s ill-judged actions. When dealing with this type of misconduct, the entire team must be punished because its victories were not achieved fairly. Collective punishment is necessary to maintain sport ethics. It can act as an effective deterrent for cheating. This is similar to how society must deal with the consequences of the actions of an individual for the protection of the greater good. We must deal with heightened security at the airport, even though we are not all terrorists. It is important that everyone bears this burden for the sake of international security.
Sports are a popular pastime in America. However, what often grasps our attention in competitive sports, apart from the excitement and entertainment of a Sunday football game, are the scandals. When players or coaches of prominent sport teams come under fire, the world takes notice. Sport scandals pop up frequently on professional, college, and amateur fields. They range from the direst, like drug use and abuse, to the most trivial, like blemishes in an individual’s personal life. Regardless of how serious the transgression, misconduct off of the field leads to the same consequence: a collective punishment. This penalty comes in many forms, be it stripping the team of its titles or merely damaging the reputation of the affected team. Nevertheless, the punishment should always fit the crime. Under certain circumstances, the entire team should bear the burden of the improper conduct. Still, occasionally, the individual perpetrator should take one for the team. A person’s actions must be analyzed in terms of cause and effects. Do this person’s actions directly or indirectly affect the team as a whole? Does the misconduct affect the team’s success and performance during a game?
We can study improper conduct in three categories: 1) misbehavior of individual players that affect the performance and/or success of the team, 2) misbehavior of
The second category deals with a player’s improper behavior that does not affect the performance of the team. This would include scandals that solely involve flaws in a player’s personal life, such as, sex scandals and criminal behavior. This type of behavior not only makes good gossip, but also results in an inadvertent collective punishment: a ruined reputation for everyone. Nevertheless, the team should not be punished for a player’s actions.
What he chooses to do off of the field, in his personal life, will definitely affect the team’s mood and relationships between players. Nonetheless, other outside factors can affect the dynamics of a team in the same way. If a player gets married, gets divorced, or gets sick, the ambiance can easily change. Furthermore, the player’s misconduct off of the field in these situations usually does not affect the team’s success. The individual should be held solely responsible for his misbehavior. In the scandal of Jets football player Brett Favre, there was no reason for the entire team to be punished for his misconduct. He was wrong for texting inappropriate content, but his slipup did not affect how the Jets performed. Thus, he was charged for his crime, but the rest of the team was not. This situation is no different from an ordinary citizen committing a wrongdoing. If a criminal robs a bank, he is the one that is prosecuted. If the offender’s family and friends were not involved in the robbery, they are not tried for having connections to the criminal. Collective punishment would not be fair or logical.
The third category involves inappropriate behavior of coaches who are leaders and overall representations of their teams. Players are bound to follow their coaches’ decisions despite any ethical breaches that may be involved. Thus, if a coach manipulates a game, the entire team should be punished because the misconduct can easily affect the outcome of a game. This happened during the 2012 Olympics, when several badminton teams purposely threw a few matches to their advantage. The teams involved were disqualified. A coach’s actions in their personal lives can also affect the team as a
whole. A coach may be involved in a devastating abuse scandal, like Penn State assistant football coach Jerry Sandusky. Players could have been aware of these incidents, but choose to keep quiet in order to maintain their position on the team. Some might also have been the unfortunate victims of a coach’s abusive behavior. When players become entwined in a coach’s personal dilemma, their performance on the field might be affected due to fear or pressure. In a case so serious, the entire team needs to take a hit so that justice can be truly served. Yet, a coach may also be involved in petty scandals in their personal lives, which do not have the same gravity as an abuse case. In those instances, the coach can take full responsibility of his actions and the rest of the team should not. Sometimes, it is difficult to define “fair.” When it comes to team sports, “fair” might not entail solely an eye for an eye. When people are bounded in group activities where an individual’s actions can lead to a Rube Goldberg machine of cause and effects, sometimes “fair” must be sacrificed. At times, an entire sports team must be punished for the actions of an individual. Yet, during other times, teams do not deserve to have ruined reputations because of the unrelated behavior of individual players or coaches. It all depends on the action, the effects of the actions, and the severity of the misconduct.
Aglaia Ho is a student at Stuyvestant High School and the first place winner in NYCLA’s 2013 High School Essay Contest, sponsored by the Law-Related Education Committee.
Practicing in NYC’s Criminal Courts Aided by Updated Manual 2013 Edition Now Available—Purchase and Help Support a Worthy Cause The 2013 NYCLA New York City Criminal Courts Manual is an invaluable resource for criminal practitioners in New York City. Since 2010, NYCLA has sold hundreds of copies of the Manual to large, medium and small firms, law schools, prosecutors, and defense attorneys from New York City, counties in upstate New York and Long Island, New Jersey, Pennsylvania, Connecticut, and Florida. Whether you are an experienced criminal practitioner or handling your first criminal case in New York City, the Manual contains critical information in an easily accessible format.
The Manual contains the fundamentals of criminal law in New York such as: commencement of an action, arraignment practices in Criminal and Supreme
Courts, plea and sentencing issues, pretrial hearings, trials, and post-judgment issues. The 2013 edition has expanded sections on Alternative to Incarceration programs and specialty courts, listing detailed contact information for these options. It also contains an entire chapter devoted to the procedure and practice of criminal court summons, both individual and corporate. Additionally, the Manual lists contact and biographical information for judges who sit in New York, Kings, Queens, and Richmond counties. The 2013 edition contains updated case law, new information regarding bail, and a new section about Certificates of Relief from Civil Disabilities and Certificates of Good Conduct. It is an excellent basic resource for anyone involved with the criminal courts of New York City.
Not only is the Manual a fantastic investment but it also supports a worthy cause. Because the Manual is produced by NYCLA’s Criminal Justice Section volunteers, all revenue from sales support the annual Public Service Fellowship Essay Contest. Based on this competition, NYCLA awards two financial stipends of at least $2,000 to a newly admitted prosecutor and a newly admitted public sector defense attorney who each has at least $30,000 in educational debt. These stipends help alleviate the financial sacrifice new lawyers make by entering public service criminal law with overwhelming educational debt.
Purchase the Manual—it’s an investment in your practice and the future of the profession! Visit the News & Publications section of nycla.org.
NOW AVAILABLE! 2013 Editions of NYCLA Publications New York City Criminal Courts Manual Attorneys’ Guide to Civil Practice in New York County Supreme Court Visit News & Publications on NYCLA.org to order your copies today
14 July/August 2013 / The New York County Lawyer
Recidivism (Continued from page 1)
no reports of re-arrests. The program also monitors the participants state offenses, if any.
One critical aspect of STAR, which has been lost, is the funding for vocational programs such as welding. Previously, STAR used the Second Chance Act3 funds to pay for a participant’s welding course at a cost of $2000. The participant graduated from both STAR and the welding program. Funds are no longer available to pay for such courses.
According to Judge Irizarry the “cost of the program cannot be quantified.” It is the restoration of offenders to being productive members of society, and their successful reintegration into society with no further criminality, or drug use that are the measurements of accomplishment for the reentry programs.
EDNY Pretrial Opportunity (POP) Program STAR is one of several drug treatment court programs in the EDNY. Another program with the acronym POP (Pretrial Opportunity Program) is administered by Judge John Gleeson and Magistrate Judge Steven M. Gold which begun in 2012.4 POP is administered by the Pretrial Services Agency and is directed by the Board of Judges.5 The program is authorized by 18 USC §3154 governing pretrial services and supervision of criminal defendants. POP is a collaborative effort of the judges, defense attorneys, prosecutors, and pre-trial services. The
Officers and Directors (Continued from page 3)
continue the good work that NYCLA has been doing.
Jay G. Safer NYCLA Member since 2002 Safer has practiced law for 40 years and practices commercial business litigation and international arbitration at Locke Lord LLP. As a NYCLA Director, he would like to continue making NYCLA meaningful and helpful to attorneys and enhance NYCLA’s role in the legal community and the public.
Diana S. Sen Joined NYCLA in 2012 Sen has practiced law for about 13 years, and currently works for the U.S. Department of Labor in the capacity of the Regional Director of the Office of Federal Contract Compliance Programs Northeast Region. As a former national president of the Hispanic National Bar Association, she hopes to help NYCLA expand its Hispanic membership and to support NYCLA’s many diversity initiatives. Edward M. Spiro NYCLA Member since 1977 Spiro is a partner at Morvillo Abramowitz Grand Iason & Anello P.C. practicing commercial litigation. He was admitted to the New York bar in March 1977 and has been practicing
goal of POP is to reduce incarceration and recidivism. (see Pretrial Opportunity Program).
POP is modeled after the state court diversion programs. Sometimes offenders post-sentence who need further drug treatment are allowed to join the POP group. The post-sentence group of offenders are a part of REAP (Relapse Prevention and Accountability Program). POP/REAP offenders are those whose drug use led to their crimes. According to Judge Gleeson, the “crimes do not involve violence, or being a leader in a drug trafficking organization.” The Judge stated that there must be a “causal relationship” between the drug use and the crime. Participants must have a history of substance abuse. Since 2012, there have been five graduates. One very successful graduate had her charges dismissed entirely, and was profiled in a March, 2013 New York Times article.6 Another graduate had a drug conspiracy charge reduced from a felony to a misdemeanor possession charge.7 The other graduates fared well in terms of sentencing.
In order to graduate, participants must maintain sobriety for 12 consecutive months, earn their GEDs if applicable, and obtain jobs. POP/REAP is not affected by the cuts in Second Chance Act funds because most of the participants have Medicaid funding, or private insurance to pay for the drug treatment programs.
Judge Gleeson wrote in the statement of reasons for each of the three offenders law in New York City over the past 36 years. As a Director, he hopes to work on issues of special interest to attorneys such as merit selection of judges and equal access to justice. At the same time, he would like to see NYCLA expand its relationship with our larger community by promoting a variety of pro bono activities.
Richard A. Williamson NYCLA member since 1972 Williamson, who has practiced commercial litigation for over 40 years, is a partner at Flemming Zulack Williamson Zauderer LLP. He is looking to carry on NYCLA’s wonderful traditions of being of service to the public, the bench and the bar and helping our new President Barbara Moses for whom he has the highest regard.
Jacqueline C. Wolff Joined NYCLA in 2012 Wolff, who has practiced law for over 25 years, practices Corporate Investigations and White Collar Defense at Manatt, Phelps & Phillips, LLP where she is a partner. She is looking to help continue NYCLA’s legacy to promote reforms that can have an impact on both the law and public policy.
who graduated, two from POP, and one from SOS (Special Options Services)8 that the programs helped the government to save thousands of dollars by placement of the offenders in the pre-sentence diversionary programs rather than in prison.9 The alternatives to incarceration approach weeded out low-level offenders from more serious drug managers of drug distribution chains for treatment of their underlying drug addiction rather than strict adherence to an ineffective punitive approach possibly leading to continued criminality. It is too early to measure the recidivism rate for POP/REAP, or SOS, but early reports are encouraging.
Southern District of New York (SDNY) Program The SDNY runs a program entitled SOAR (Supervision Opportunities to Advance Re-entry). Judge Baer oversees the program, assisted by Magistrate Judge Henry Pittman. Begun in 2012, SOAR is the first program of its kind in the SDNY. Judge Baer stated that the SDNY program is patterned after the Eastern District Court of Pennsylvania’s re-entry program or STAR (Supervision to Aid Reentry) begun in 2007.
SOAR has had two “classes” of exoffenders who are in the process of completing the supervised release part of their sentences. Participants are chosen based upon their likelihood of recidivism. Participation is voluntary. Participants can choose to remain just on supervised release without a re-entry program. There have been five male graduates per class aged 30 to 40. Some participants have served sentences as long as 17 years, but some less than ten 10 years. The offenders have included the “major crimes,” but instead are for the most part lower level, non-violent offenders. Most return home to their families. The program is one year long and the participants are required to sign a contract agreeing to the rules, and regulations of the program and agreeing to set and meet goals to enhance their chances of successful reintegration into society. The participants should have no rearrests.
From 5 to 7 p.m., the participants talk to Judge Baer, or in his absence, Magistrate Judge Pittman. The first hour-and-a-half is a progress report on how the participants are succeeding in meeting job, educational, and housing goals. From 5 to 7 p.m., the participants receive instruction from the service program providers, and from the probation department.
According to Judge Baer, the program is currently “suspended” while the Federal Judicial Center evaluates the recidivism rates of the program participants versus non-participants. Judge Baer stated that any evaluation that assesses the first “six-months” after the program would conclude that the program participants have lower recidivism rates.
SOAR was supported by the Second Chance Funds Act, but due to sequestration, effective March 2013, the program funds have been cut jeopardizing the reinstallation of the program. SOAR relied heavily on outside providers such as the Fortune Society to re-acclimate the ex-offenders into jobs and home life, but the funds for paying the providers
are no longer available.
Judge Baer hopes that if and when the program is reinstated that it will be extended to two years, rather than the current one year, and that there will be educational therapy, and a psychological component (such as anger management training) that evaluates the participants prior to entrance into the program.
The success rate of the alternative to incarceration programs in the EDNY and SDNY has not yet been conclusively determined. However, anecdotal reports indicate reduced criminality, quicker reintegration into society, and rehabilitation of drug addicts who engaged in criminality as a result of their longstanding addictions. While there is debate over whether or not this is the purview of the federal courts10, what is clear, is that the bench, bar, pretrial services, and probation services all benefit from moving offenders out of the criminal justice system faster and possibly permanently.
Laury A. Betha, Phd., Esq. is a member of NYCLA’s Federal Courts and LGBT Committees. She is a solo-practitioner with the Law Office of Laury A. Betha in Fort Lee, NJ. She works collaboratively in New York with George Bundy Smith & Associates, P.C.
References 1 Ware, Jamie M., The Supervision to Aid Reentry (STAR) Program: Helping Previously Incarcerated Federal Prisoners Succeed in Transitioning Back to the Community, Philadelphia Social Innovations Journal, (March, 2011), Available at, http://www.philasocialinnovations.org/site/index.ph p?option= com_content&view=article&id=253:the-supervision-to-aid-reentry-star-program-helping-previously-incarcerated-federal-prisoners-succeed-in-transitioning-back-to-the-community&catid=20:whatworks-and-what-doesnt&itemid=31. (last visited June 7, 2013). 2 Irizarry, D. STAR Program Description, U.S. District Court Eastern District of New York (September 19, 2012). 3 The Second Chance Act (P.L. 110-199) was signed into law April 9, 2008. The Act provided grants to “government agencies and nonprofit organizations to provide support strategies and services designed to reduce recidivism by improving outcomes for people returning from prisons, jails and juvenile facilities.” “The Second Chance Act’s grant programs are funded and administered by the Office of Justice Programs in the U.S. Department of Justice.” Available at, http://csgjusticecenter.org/nrrc/projects/second-chance-act/ (last visited June 5, 2013) see also, Justice Department Announces $58 Million to Improve Reentry Outcomes, Grants Support Improved Probation and Reentry Programs. Available at, http://www.justice.gov/opa/pr/2012/October/12-ag1185.html (last visited June 5, 2013). 4 The POP program in Central Islip is supervised by Judge Joanna Seybert and Magistrate Judge Gary Brown. 5 United States Pretrial Services Agency Eastern District of New York, Pretrial Opportunity Program, (January, 2012) 6 Secret, M., “Outside Box, Federal Judges Offer Addicts a Free Path,” The New York Times, (March 1, 2013). 7 Gleeson, J. Statement of Reasons For Accepting Deferred Prosecution Agreement Dismissing Charges Entirely (11-CR-00609)(February 28, 2013) (Available from Judge Gleeson), at pp. 11-12 8 Id. at p.22.(The SOS program started in January, 2000, and was revamped in January, 2013. The program focuses on non-violent juvenile and young adult offenders (18-25) and is supervised by Magistrate Judges Joan M. Azrach and Cheryl L. Pollak). 9 Id. at p. 7, fn. 24. 10 Id. at pp. 25-35.
July/August 2013 / The New York County Lawyer 15
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Negotiation (Continued from page 2)
as belittling the other party’s alternatives, making threats and warnings, walking out, and table pounding, persevere.11
If you are naturally competitive, but want to avoid the pitfalls of competitive bargaining, you should concentrate on asking more questions, and make a concerted effort to understand what is really important to the other side. Another tip is to avoid haggling over every issue, and consider making concessions on less important items.
Problem-Solving Problem-solving requires a set of tactics designed to explore parties’ interests, priorities, and differences that can be integrated to reach a mutually satisfying agreement. In problem-solving, parties make big concessions on issues that are less important, and small concessions on those that are more important. A simple way to figure out a party’s priorities is to ask: “Do you care more about X or Y?” Parties can create value in negotiation not only by unearthing shared interests, but also by trading on differences.
Options that exploit differences between the parties may be found in different access to resources, future expectations, time preferences, and risk tolerances. For example, a client may
be willing to pay more for the services of an architect in exchange for the architect ordering materials at his trade discount, which would not be available to the client otherwise. Meanwhile, parties negotiating the sale of a business may agree on a base price plus a percentage of the business’ increased revenues if they have different expectations about the market value of the business in the future. If it is worth more to a prospective tenant to move in early than it costs the vacating tenant to move out early, the latter may agree on an early moving-out date in exchange for compensation. Finally, parties who have different risk preferences can create a mutually beneficial agreement by allocating risk to the more risk-tolerant party for a price that is acceptable to the party that is more risk-averse.12 What if the other side is not willing to disclose its interests, but instead focuses on positions and makes extreme demands? Be prepared to deflect these competitive tactics by sticking to problem-solving techniques. Reframe what your counterpart says as an option, suggestion, or possible outcome, and propose discussing some other way to resolve the issue. Do not fall into the trap of reacting to hard bargaining. Impasse If there is a fundamental impasse, sometimes it is best to take a break and reassess the situation. An effective way to jump start the negotiation is to remind the
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Commitment Hopefully, all your hard work in bargaining and making concessions will produce a negotiated solution. But, “[t]he goal of all negotiations is to secure commitment, not merely agreement.”13 Lawyers should consider employing devices that may help guarantee the performance of the underlying agreement, such as security bonds, deposits in escrow accounts, down payments, etc. It is equally important to anticipate problems that may occur in the future. “Time bombs” can be avoided by including specific clauses, such as non-disparagement, protection of trade secrets, limitation on consequential damages, confidentiality, etc., in your term sheet. In addition, a release of claims agreement should be used when appropriate. Becoming an effective negotiator requires preparation and experience. As a lawyer, you can use your analytical skills to understand the negotiation process.
However, the first step was carved into the Temple of Apollo at Delphi: ‘know thyself.’ By learning about your natural dispositions, you can adopt styles and techniques that are best suited to your negotiation, and adapt to varying circumstances. In this way, you can achieve the best possible outcome for your specific clients, and success generally as a negotiator.
Clara Flebus, Esq., LL.M., a NYCLA member, is an Appellate Court Attorney in New York Supreme Court, and Secretary for Arts for Peace, a 501 (c) (3) charity, for which she negotiates on a regular basis. She is a member of NYCLA’s Appellate Courts, Arbitration and ADR, and Foreign & International Law Committees, and Young Lawyers’ Section. References
1 G. RICHARD SHELL, BARGAINING FOR ADVANTAGE, 28-30 (Penguin Books 2006). 2 See Gary Goodpaster, A Primer on Competitive Bargaining, 1996 J. DISP. RESOL. 325, 326 (1996). 3 See id. at 328. 4 See id. at 327. 5 See SHELL, supra note1,at 120-121. 6 See id.at 121. 7 See id.at 125. 8 See id.at 140-142. 9 See ROBER H. MNOOKIN, SCOTT R. PEPPET& ANDREW S. TOLUMELLO, BEYOND WINNING – NEGOTIATING TO CREATE VALUE IN DEALS AND DISPUTES, 63-65 (Harvard University Press 2000). 10 See id.at 28-30. 11 See id.at 24. 12 See MICHAEL WATKINS, HARVARD BUSINESS ESSENTIALS - NEGOTIATION, 60-61 (Harvard Business School Publishing 2003). 13 SHELL, supra note1,at 191.
16 July/August 2013 / The New York County Lawyer