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February 2013

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Where the Legal Jobs Are

As law firms hire, they will remain sensitive to the needs and requirements of their clients. They will continue to hire selectively, seeking tenured associates and paralegals with in-demand expertise who can immediately contribute to meeting client requests for services and renewing their commitment to growth. On the corporate side, legal departments will continue to hire as their volume of work increases and they will expand their internal teams as a way to reduce spending on outside counsel.

By Robert Half Legal

Which specialty areas are predicted to yield the most prospects for legal job seekers in the year ahead? Almost onequarter (22 percent) of lawyers recently interviewed by Robert Half Legal expect litigation will generate the greatest number of job opportunities in 2013. Healthcare and general business/commercial law ranked second, with each practice area receiving 19 percent. Here’s a look at the top practice areas for 2013:

Litigation: A surge in corporate and commercial litigation will continue to create demand for associates, paralegals and legal secretaries with litigation expertise, as well as skilled lawyers, JDs, and paralegals who specialize in e-discovery and document reviews. These experts are not easy to find.

Healthcare: Many companies need legal counsel to help them navigate the complexities of healthcare reform and comply with recent regulations. In addition, demand for legal professions with this practice area expertise is being generated

by companies who specialize in the biotech and medical fields.

General business/commercial law: Law firms are hiring associates and paralegals who can guide clients through various types of corporate matters such as contract negotiations, mergers, and other transitions. Renewed business activity and ongoing regulatory requirements also are creating demand for experienced in-house attorney and compliance managers.

Competition will continue to increase for top legal talent as both law firms and legal departments recruit highly skilled specialists from the same talent pool. Many employers are also bolstering their retention efforts to avoid losing valued staff members to other organizations.

Robert Half Legal, a division of Robert Half International, places highly skilled professionals, including attorneys, paralegals and legal support personnel, on a project and full-time basis. Robert Half Legal offers online job search services at

Setting Expectations Around Spousal Support DRL § 236 (B) (5-a) –The Uncertainty of Certainty By Louis Newman, Esq. and Briana Denney, Esq. While there are few constants in the realm of matrimonial practice, there is the constant inquiry (or perhaps demand) of the nonmonied spouse of “How much support will I receive?” and the corollary question of the monied spouse of “How much will it cost me?” In an effort to answer these fundamental inquiries with a reasonable degree of certainty, the New York Legislature enacted DRL § 236 (B) (5-a), which establishes specific presumptions as to both spousal support and counsel fees. “[T]he legislative intent of the statute is consistency in maintenance awards.”1 The legislative Memorandum states the statute is to provide “consistency and predictability in calculating temporary spousal maintenance awards.”2 Since the October 2010 effective date of the statute, “consistency and predictability”

of temporary maintenance has been far from being within the reach of the practitioner, much less the parties. The harbinger of the statute’s lack of “consistency” and the havoc yet to come is embodied in the very language of the statute. The Legislature, using a phrase we have seen before, authorized the court, upon a finding predicated on 17 enumerated factors that the presumptive award is “unjust and inappropriate,” to adjust the presumptive award. This is but the start of the litigation avalanche of pendente lite posturing. With the statutory blessing of being authorized to make the subjective finding that the presumptive award is “unjust and inappropriate,” the court returns to the discretionary venue of consideration of the facts of the case. Critical to a deviation from a formula award is the mandate that the court “shall set forth, in a written order, … the factors it considered, and the reasons that the court

adjusted the presumptive award of temporary maintenance.” The requirement of a “written order” cannot be waived by counsel or the parties. The First Department, in remanding to the motion court a pendente lite order which deviated from a strict application of the formula, implicitly upheld the deviation, but enforced the requirement of a “written order” addressing the factors considered by the motion court.3 In one of the earliest published decisions involving the temporary maintenance statute, Justice Jeffrey Sunshine declared, “The basis of the majority of the deviations enunciated in the statute are difficult to determine pre-trial and pre-discovery” with the court being “required to consider factors some of which can only be established after a full trial or extensive discovery… at the earliest stage on the litigation.”4 Consistency and predictability” surely cannot exist under the statutory scheme. (See Spousal Support on Page 6)

Volume 7 / Number 19


Your Data

Exposed ...................3 Patients’ Rights .....11 Workplace

Discrimination........11 T A B L E O F C O N T E N T S Book Review .................................7 CLE Institute .................................4 Digital Training Center CLEs .....10 EDNY Update ...............................2 E-Newsletter Sins ........................13 Ethics Hotline..............................15 Library Notes ..............................10 Message from Barbara Moses, NYCLA Foundation President......6 Message from Stewart D. Aaron, NYCLA President .........................3 Patients’ Rights............................11 Recent Event Photos .....................8 Spousal Support ............................1 Upcoming Events ..........................9 What’s Tweeting..........................14 Where the Legal Jobs Are .............1 Workplace Discrimination...........11 Your Data Exposed........................3


February 2013 / The New York County Lawyer

State of the Eastern District of New York By Vincent T. Chang

The Eastern District of New York (EDNY), like the entire federal judiciary, faces severe budget constraints. Even without the draconian budget cuts that would be triggered by sequestration and the “fiscal cliff”—a threat which will recur in a matter of months—the EDNY faces an increasing workload with decreasing resources. Despite these challenges, the EDNY has managed its docket efficiently and has unveiled innovations designed to ensure that the Court not only weathers the current fiscal crisis, but improves the administration of justice.1 However, these steps would be insufficient to cope with the crisis that sequestration would trigger, and the bench and bar should continue to be vigilant in monitoring the legislative situation and opposing the threat that sequestration would pose. Throughout its history, despite a population and docket that are among the nation’s largest, the EDNY has worked with a group of judges much smaller than that in the Southern District of New York (SDNY). Today, the EDNY has 15 authorized district judges to serve 8 million people, with one position unfilled. These judges are ably assisted by 12 senior district judges, 15 magistrate judges, one recall magistrate judge and seven bankruptcy judges. In FY2012, the EDNY’s case load grew, with pro se filings increasing from 19 percent to 23 percent of the total civil case load. Nonpro se civil filings are up two percent.

Cost containment EDNY Chief Judge Carol Amon serves on the Judicial Conference as one of the Second Circuit’s representatives and has often had to cope with difficult budgetary issues. For example, over the objections of Chief Judge Amon and Second Circuit Chief Judge Dennis Jacobs, the District of Vermont was forced to cut its only pro se clerk. Even without sequestration, such sacrifices may become commonplace. In February 2013, each court in the Circuit must present to Chief Judge Jacobs its plan for shared administrative services.

In the EDNY, FY 2013 allotments will likely assume that final FY2013 appropriations will approximate those of FY2012, which would translate to a shortfall of $239 million nationwide and $1.4 million for the EDNY. Such a budget would result in a 10.4 percent cut in Clerk’s Office staff salaries and allotments for expenses, such as IT, supplies, operational costs, overtime, and utilities. The portion of the U.S. Courts’ budget that is “mandatory” is growing each year, and so more cuts in “discretionary” expenditures (i.e., staff, facilities maintenance and expenses) will be required. In the EDNY Clerk’s Office, 17 out of 177 positions could be cut. However, because 77 of the 177 positions are mandatory and cannot be cut, all cuts must be concentrated in the remaining 100 positions. This yields an effective 17 percent cut in operations staff, mainly from administrative services and operations, including intake, docket staff, coverage, IT, human resources, procurement, jury, administrative staff, and finance. TO ADVERTISE IN THE NEW YORK COUNTY LAWYER CALL 631-427-7000

Fortunately, over the past year, the EDNY has reduced its expenses and personnel payroll so that the expected $1.4 million shortage has been reduced to about $490,000. The EDNY hopes to recover that amount through the redirection of funds from IT to personnel. As a result, the District should be able to avoid layoffs and furloughs in FY2013.

This relatively optimistic scenario would not occur if automatic fiscal cliff/sequestration cuts are triggered. The recent December 31, 2012 budget deal has only been deferred for several months and has not eliminated the prospect of such cuts. If such cuts are triggered, the entire federal judicial budget could be cut by nearly $400 million, with the EDNY suffering potentially another 8 percent cut in FY2013, meaning a total cut of at least 16.5 percent. At that level, the EDNY would have to shed about 20 positions and potentially furlough all staff for 12 days during the fiscal year. There would be insufficient personnel to staff the counters in both court locations and to continue to docket submissions through the Clerk’s Office, open cases, and process financial transactions. The Court might have to close for part of the week or otherwise limit public hours.

In addition to loss of the Clerk’s Office staff and the attendant limited availability of Clerk’s staff to the public, sequestration could potentially result in loss of jurors, as jury fees and expenses would be cut, loss of coverage staff for court events, delayed CJA voucher approvals and payments, delayed payments to vendors, reduced quality control, reduced maintenance of court facilities, reduced maintenance of court information technology, increased error rates in docketing (possibly affecting speedy trial, appeals, etc.), increased time for a document to reach the docket sheet after filing, increased time to process restitution to victims of crime, increased time to record orders and process judgments, increased error rates in presentencing reports, and possible reduction in public services, such as immigration ceremonies.

Probation The EDNY’s Probation Department oversees thousands of federal probationers in the District. In the last four years, the EDNY’s Probation Department reduced its staff by nearly 30 full time positions for a myriad of reasons. Last fiscal year it mandated four monthly furlough days, reduced staff and salaries through attrition, early retirement, and buyouts, and eliminated staff performance step increases, promotions, and replacements. They are operating under-staffed in order to make payroll. Efforts are being made to further reduce staff through early retirement and buyout incentives. However, deep budget cuts may cause added furlough days and/or staff reductions. With such a reduced staff, the Department will likely be required to place many offenders into administrative caseloads with less supervision and more risk to the community. In the event of sequestration, the probation department would have to significantly reduce salary costs by the equiva-

Statement from NYCLA President Stewart D. Aaron on Proposed 2013-2014 Budget for New York State Judiciary

The proposed no-growth budget submitted for the New York State judiciary is a stark reminder of the current economic and political climate. We applaud Chief Judge Lippman, Chief Administrative Judge Prudenti, and the Office of Court Administration for their adept handling of the judicial budget in these time of fiscal constraints. We also applaud the Chief Judge for the additional $15 million he allocated in the proposed budget toward providing civil legal services to low-income New Yorkers. We call upon the Legislature to approve the proposed budget. lent of 22 more positions. Officers would be forced to handle even more clerical duties and reduce their exceptional work on the “extra” innovative programs which provide community service and/or deter, detect and aid in the rehabilitation of convicted offenders. The shortfalls could also reduce the quality and quantity of treatment sessions for offenders.

Pretrial Services Another important security-related function at the EDNY is Pretrial Services. Pretrial Services is currently staffed at only 74 percent of its authorized level, with 41 employees. The office oversees 1,300 annual bail investigations and monitors over 1,600 defendants under community supervision. The average line officer currently conducts 80 to 110 full bail investigations annually while simultaneously supervising approximately 60 defendants.

Again, sequestration could dramatically affect the investigation and monitoring of pretrial defendants. Staffing would be reduced from 74 to 60 percent of the authorized level, and across the board furloughs of more than 12 working days might be required. As a result, bail investigations would likely take more time and be less comprehensive, hindering the office’s ability to fairly assess each defendant’s risk of danger and flight. This could increase the number of detainees and thus detention costs. The office could also be required to terminate or reduce services provided to supervised defendants, including drug and mental health evaluations, sex offender evaluations and therapy, house arrest, and workforce development initiatives. Sequestration would make it more difficult to detect defendant non-compliance. Management oversight of officers’ compliance with policies and procedures would be reduced, officers would spend less time in the field and would have decreased training and access to computer monitoring software. Moreover, innovative programs which offer intense supervision and rehabilitation services to defendants would also be adversely impacted. Together, these effects could result in heightened danger to the community. Innovative Programs Despite budget constraints, the EDNY participates in several innovative programs. It is one of 14 courts participating in the 10-year Patent Pilot Program. Six district judges and nine magistrate judges

Nevertheless, as NYCLA’s Task Force on Judicial Budget Cuts observed during the course of its work that began after the judicial budget was slashed by $170 million in 2011, the cuts came with costs in terms of access to justice. We urge that, as promptly as possible, a substantial portion of the budget cuts be restored so that access to justice can be increased for all New Yorkers. The judiciary is a separate and independent branch of government deserving of adequate resources to carry out its mandate.

participate in the program. Since its unveiling on February 2, 2012, more than half of the patent cases filed in the District have gone into the program. The EDNY Board of Judges has adopted local patent rules, which have been published for comment.

Other new EDNY initiatives include the Perimeter Project to provide a secure and safe perimeter for the courthouse, public Internet access throughout the courthouse, and an e-mail document filing system. The EDNY also looked at two SDNY programs, but did not adopt them. The EDNY’s Committee on Civil Litigation recommended against adoption of the SDNY’s “Pilot Project Regarding Case Management Techniques for Complex Civil Cases”because the EDNY Committee did not perceive a similar need for a set of uniform procedures in complex civil cases, and because the SDNY’s Project might yet be modified or discontinued once it is evaluated. The Committee recommended, however, that individual judges review this program with an eye to possibly incorporating parts of the program in judges’ individual practices.

The Committee also reviewed the SDNY’s pilot “Plan for Certain § 1983 Cases Against the City of New York,” which is intended to encourage early settlement of certain cases filed against employees of the New York City Police Department under 42 U.S.C. § 1983. Again, this plan has not been evaluated by the SDNY. The EDNY Committee on Civil Litigation has concluded that the EDNY does not need such a plan, as EDNY magistrate judges actively manage § 1983 cases, and the EDNY settled roughly the same percentage of cases as the SDNY during the first fiscal year of the SDNY’s pilot plan. We acknowledge the extensive and generous assistance of EDNY Chief Judge Carol Amon, her judicial clerk Michelle Banker, and of the EDNY’s departmental staff in producing this article.

Vincent T. Chang is the Chair of NYCLA’s Federal Courts Committee, a member of NYCLA’s Executive Committee and Board of Directors, and the Chair of the NYCLA Foundation. A graduate of Harvard College and Harvard Law School, Mr. Chang is a litigation partner at Wollmuth Maher & Deutsch.

February 2013 / The New York County Lawyer

Dear Readers:

There is an increasing demand for lawyers in certain practice areas of the legal industry, with many legal professionals specializing in particular practice areas. This issue of the New York County Lawyer is the first in our two-part series on “hot” topics in “hot” legal practice areas, and provides insights to assist you in learning about emerging topics to help shape your practice.

According to the American Bar Association’s What’s Hot and What’s Not in the Legal Profession Trends Report, one such “hot” practice area is health care. In a story on page 11, a member of NYCLA’s Health Law Committee covers basic employment rights and advice for cancer patients, a “hot topic” in this “hot” practice area. According to the author, “Unfortunately for many, the reality is that even with leave afforded under the Family Medical Leave Act patients may need to work through part or all of their battle with cancer in order to maintain their employment, health insurance, and income. To add insult to injury, many cancer patients face discrimination in the workplace that can be intolerable or even

Stewart D. Aaron President, New York County Lawyers’ Association

lead to termination, whether legal or not.” Looking to break into this area? Read on below and learn how lawyers can counsel clients with cancer to make the experience more bearable and in turn help them avoid certain pitfalls in the workplace.

Meanwhile, the matrimonial practice area is another that has experienced growth in recent years. On the cover of this issue, NYCLA’s Matrimonial Section Co-Chair Briana Denney and her business partner, Louis Newman, cover how to set expectations around spousal support. They address the questions matrimonial attorneys hear from clients on this topic and DRL § 236(B)(5-a), enact-

ed by the New York State legislature, which establishes specific presumptions as to both spousal support and counsel fees. Another emerging topic in matrimonial practice is same-sex marriage, with important U.S. Supreme Court arguments on this issue happening in March. In December, at the 2012 NYCLA Annual Dinner, the New York legal community celebrated LGBT equality and honored corporations and law firms that have demonstrated a commitment to LGBT equality. Flip to page 8 to see photos from this very special event. Other practice areas in demand for legal professionals include international law, banking and intellectual property. Stay tuned for more on hot topics in these industries in next month’s issue. In the meanwhile, Tweet me @NYCLAPres and share what “hot” practices you are noticing in the legal world and what “hot” topics you see emerging.

Stewart D. Aaron President New York County Lawyers’ Association

Your Data, Exposed By Jane Chuang, Esq.

The explosive growth of digital data available and the ease with which it can be shared over the Internet has put the spotlight on data privacy law. For example, what happens when a popular e-mail provider automatically signs up its users for its social networking site and reveals the names and e-mails of its users’ most frequent contacts to others?1 Or when a hard drive containing medical records and social security numbers is lost on the train?2 Or when location-based data is published on a site called to indicate when someone is not at home?3 Or when a photo-sharing website changes its privacy policy to allow it to use photographs for advertising purposes without first notifying the owner?4 All of these instances raise concerns about one’s control over one’s own personal data and the security of such data.

Unlike most other developed countries, the United States does not have a comprehensive privacy law. Rather, it uses a patchwork of federal laws governing particular industries. For example, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) requires covered healthcare entities to safeguard and limit access to medical records.5 The Gramm-Leach-Bliley Financial Modernization Act of 1999 requires financial institutions to notify consumers about their data sharing practices and to protect sensitive data.6 The Children’s Online Privacy Protection Act regulates operators of websites and online services directed at children under the age of 13 and requires parental notification and consent before collecting information from children.7 In addition, the Federal Trade Commission (FTC) regulates data privacy based on its authority to prohibit unfair or deceptive acts or practices under Section 5(a) of the FTC Act.8 For

example, in 2012, the FTC settled a claim against Google for placing advertising tracking cookies on the computers of Apple Safari browser users who had opted out of tracking in violation of a previous consent order. Google agreed to pay a $22.5 million penalty.9

This followed in the footsteps of an earlier FTC complaint against Google for using deceptive practices and violating its own privacy policy when it launched its social networking site, Google Buzz, in 2010.10 According to that complaint, Google led its Gmail users to believe that they could choose whether or not to join Google Buzz, when in fact the users were not given effective options to opt out of the network and were not provided with a clear way to limit the sharing of their personal information. Further, Google did not inform users that their frequent e-mail contacts would automatically become public. This feature in particular led to backlash from many users, who pointed out that e-mail contacts could reveal sensitive information such as medical providers or illicit affairs, or the contacts of political activists in countries such as China, or could even reveal information about the user to former abusers or stalkers.11

Further, Google’s privacy policy had indicated that it would not use personal information in a manner that was different than the purpose for which it was collected without consent; however, it used information provided for Gmail for Google Buzz without asking for permission first. To settle the Google Buzz complaint, Google agreed to implement a comprehensive privacy program and submit to regular independent privacy audits for 20 years.12 While Google was the first to agree to such a privacy program as part of an FTC settlement, the FTC has also obtained agreements from other companies such as Facebook and MySpace to

establish similar privacy programs as part of their settlements of FTC complaints.13 Along with existing federal laws and FTC enforcement, a number of states have also passed data privacy laws. One notable example is California, which enacted its Online Privacy Protection Act14 in 2003. The Act requires any website that collects “personally identifiable information” such as a name, e-mail address, phone number, or Social Security number to have a privacy policy conspicuously posted on website. The policy must describe what categories of information that is being collected, what entities may have access to the information, and how a user can review and request changes to his or her information. Penalties are assessed if a company violates its own posted policy. Since the California law applies to any website used by California residents, it effectively applies to just about any website on the Internet.

In contrast to the United States’ more scattershot approach, Europe has a comprehensive data protection policy called the European Union Data Protection Directive. Under the E.U. framework, privacy and protection of personal data is a fundamental right.15 Consumers have a right to know who holds and controls their data, and why, and also have a right to correct inaccurate data, and to withhold permission for using their data in certain situations. Transfers of personal data from within the E.U. to outside of the E.U. must meet certain standards to comply with the directive. As a result, U.S. companies doing business with or attracting European consumers should be aware of the more stringent E.U. privacy standards.

While many in the U.S. have called for more comprehensive data privacy laws, so far such laws have not been enacted. Holes in the U.S. framework can pose (See Your Data Exposed on Page 12)


COUNTY LAWYER Stewart D. Aaron 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

Marian Goldman

National Association of Criminal Defense Lawyers Rick Kopstein



February 2013 / The New York County Lawyer


Programs on Topical Issues This February Join Program Chairs Olivera Medenica, Wahab & Medenica LLC and Frances Hadfield, Grunfeld Desiderio Lebowitz Silverman & Klestadt LLP and NYCLA’s Entertainment Intellectual Property and Sports Section on Friday, February 8 for an all-day program, Down the Runway: A Day of Fashion Law.

An extraordinary panel of attorneys and general counsel from some of the fashion industry’s biggest names will discuss the myriad of issues arising when representing a fashion client. • PANEL I - The Business Foundation: The essentials of company formation, and growth through financing vehicles such as private placements (debt and equity offerings).

• PANEL II – The Business of Fashion: Commercial agreements in the fashion industry, e.g., those with department stores and licensing agents.

• PANEL III – Classifications, Value, Labeling and Border Control Issues: Importation of goods into the U.S.

• PANEL IV – Intellectual Property: The extent to which intellectual property does or does not cover fashion apparel, anti-counterfeiting strategies. • PANEL V – Brand Building: Growing a brand through licensing, as well as basic IP protection considerations when expanding a brand into another country.

• PANEL VI – Talent, Advertising and Web 3.0: Talent agreements, and the regulatory framework governing advertising and promoting a brand.

NYCLA’s Insurance Law Committee and Nelson, Levine deLuca & Hamilton will co-sponsor Hurricane Sandy: Insurance Coverage Disputes and Regulatory Issues on Thursday evening, February 7. Insurance companies have been impacted by hundreds of thousands of claims arising from monster storm Sandy, all of which have to be adjusted and some of which will result in disputes between insurers and their policyholders. Further, regulatory changes imposed in Sandy’s wake significantly impact this process. Hear presentations by insurance industry experts on key issues relating to the storm and its impact on the insurance industry and policyholders, and an insurance company executive who will speak to the effect of the storm on an insurer: • Insurance Coverage Disputes from an Insurer’s Perspective: Steven Nassi, Partner, Nelson Levine deLuca & Hamilton

• Regulatory Issues Arising from Sandy: James Veach, Partner, Mound Cotton Wollan & Greengrass

• Insurance Coverage Disputes from a Policyholder’s Perspective: Jeffrey Schulman, Partner, Dickstein Shapiro, LLP

In the wake of the Arab Spring and American Autumn protests of 2011, public protest actions are becoming increasingly common, and attorneys are increasingly being sought out by individuals and organizations to assist in these protest actions, whether in securing permitting, observing police interactions, or defending arrested protesters. Join NYCLA’s Civil Rights & Liberties Committee and a panel of seasoned practitioners on February 22 for Protest Lawyering: Theory and Practice. Explore the relevant laws and practices that mediate and define first amendment protected protest

activities, and learn the tricks of the trade that enable attorneys to preserve and protect protesters’ rights.

Late January and February Programs How to Handle a Wage and Hour Case Thursday, January 31 - 9 p.m. 3 MCLE Credits: 1 Ethics; 1 Skills; 1 PP; Transitional and Non-transitional Advice from the Bench: Practice Tips for Young Lawyers Thursday, January 31 - 7-8:40 p.m. 2 MCLE Credits: 1 Ethics; 1 PP/LPM; Transitional and Non-transitional

Build Your Practice the Logical Way Tuesday, February 5 - 5:30-9 p.m. 4 MCLE Credits: 1 Ethics; 2 Skills; 1 PP; Transitional and Non-transitional The New Form of Owner’s Rider to the Standard Agreement Between Owner and Contractor (AIA Document A107) Thursday, February 7 - 6-7:45p.m. 2 MCLE Credits: 2 PP; Transitional and Non-transitional

Hurricane Sandy: Insurance Coverage Disputes and Regulatory Issues Thursday, February 7 - 6-8 p.m. 2 MCLE Credits: 2 PP; Transitional and Non-transitional Down the Runway: A Day of Fashion Law Friday, February 8 - 9 a.m.-5 p.m. 8 NY MCLE Credits: 5 PP/LPM; 3 Skills; Transitional and Non-transitional Anatomy of a Deposition Tuesday, February 12 - 6-9 p.m. 3 MCLE Credits: 3 Skills; Transitional and Non-transitional

All 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. Property Insurance in the City: Learning From Sandy Wednesday, February 13 - 9 a.m.-noon 3 MCLE Credits: Breakdown TBD

A Lawyer’s Guide to Medical Records: Understanding the Story They Tell and How to Use Them Wednesday, February 13 - 6-8:30 p.m. 2.5 MCLE Credits: 1 Skills; 1.5 PP; Transitional and Non-transitional

Protest Lawyering: Theory and Practice Friday, February 22 - 9 a.m.-5 p.m. 8 MCLE Credits: 3 Ethics; 2 Skills; 3 PP; Transitional and Non-transitional NYCLA’s CLE Institute now Approved as a Provider of Continuing Professional Education for accountants and CPAs. Check our website at for applicable courses. Please note that Tuition Assistance is available for qualified attorneys for live programs offered by the CLE Institute. Check our website at 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.

February 2013 / The New York County Lawyer



February 2013 / The New York County Lawyer

M E S S AG E F RO M B A R B A R A M O S E S , P R E S I D E N T O F T H E N YC L A FO U N D AT I O N Dear Friends:

program has been highly successful in obtaining the licenses they need to obtain or retain gainful employment, which in turn markedly reduces recidivism. The U.S. Tax Court pro bono program—the first of its kind in the New York area— puts NYCLA volunteers in the courtroom during calendar call sessions, to assist pro se tax court litigants with questions ranging from settlement offers to trial procedure.

In my capacity as President of the New York County Lawyers’ Association Foundation, I have frequently used this space to ask NYCLA members to support our programs and services with donations to the Foundation. This month, I want to use the same space to thank you for responding generously throughout 2012, and to tell you a little bit about what the Foundation is able to do with your donations. Thanks to the generosity of NYCLA’s members and supporters, we raised approximately $173,000 in 2012, including almost $65,000 donated to the Foundation’s Second Century Fund, which supports all of NYCLA’s programs and services. In addition, we received generous contributions earmarked for specific programs, such the Minority Judicial Internship Program, Project Restore, and the U.S. Tax Court pro bono program. The Minority Judicial

Internship Program, established by NYCLA Past President Hon. Harold Baer Jr. and his wife, Dr. Suzanne Baer, gives minority law students the opportunity to complement their studies with paid summer judicial internships in the chambers of federal and state judges around New York City. Through Project Restore, NYCLA volunteers provide pro bono assistance to ex-offenders who are initially denied vocational licenses by the New York Department of State. This unique

We are pleased to report that 93 percent of our NYCLA board members and 96 percent of our Foundation board members personally contributed as part of our 2012 fundraising campaign. We also received contributions from a wide crosssection of NYCLA members, including lawyers practicing in large and small firms, as solos, in government agencies, as public defenders and prosecutors, and in pro bono organizations. We particularly thank former President James B. Kobak, Jr. and Treasurer Carol Sigmond for their personal generosity.

To show your support for the programs that make us proud to be members of NYCLA, you can simply go to and choose “Giving to NYCLA.” You can also mail a check, payable to the “NYCLA Foundation,” to NYCLA Foundation, 14 Vesey Street, New York, NY 10007. We are grateful for every contribution and are pleased to say “thank you” with a selection of DVDs, books, prints and other gifts, described on our website. NYCLA needs both your support and your ideas. Please do not hesitate to contact me with suggestions for fundraising or related topics. You can reach me at Sincerely,

Barbara Moses President of the NYCLA Foundation

Ida B.Wells-Barnett Justice Award Presented to General Counsel of Consolidated Edison The New York County Lawyers’ Association congratulates Elizabeth D. Moore, General Counsel of Consolidated Edison Company of New York, for being selected to receive the 11th annual Ida B. Wells-Barnett Justice Award. Each year NYCLA along with the Metropolitan Black Bar Association (MBBA) presents the Award, named for Ms. Wells-Barnett, one of the first African American women to run for public office in the United States, to a woman of color who life reflects her

Spousal Support (Continued From Page 1)

In determining whether the presumptive award of maintenance is unjust or inappropriate, the statute mandates the consideration of the seventeen (17) enumerated factors.5 If the formula approach yields an “unjust or inappropriate” result, the deviation therefrom must be explained in the Court’s written decision.6 Prior to the enactment of DRL § 236 (B)(5-a), it was not uncommon for pendente lite awards to make a specific direction with regard to housing costs together with a regular recurring monthly payment of a sum certain. Conspicuously absent from the temporary maintenance statute is any mention or reference to household costs. “No language in DRL § 236 (B)(5-a) . . . specifically addresses whether the statutory formulas are intended to include the portion of the carrying costs of their residence attributable to the nonmonied spouse and the chil-

spirit and courageousness by distinguishing herself in the right for racial and gender equality.

General Counsel at Con Edison since May 2009, Moore is a former partner in the firm of Nixon Peabody LLP, where she specialized in public finance, employment law, procurement policy, and government compliance and regulatory issues. She also served for 12 years in the administration of former New York Governor Mario Cuomo, as Counsel to the

dren.”7 This failure of the statute to address the specifics of household expenses and the extent to which child support covers any portion of the household expenses created more confusion than it did consistency or predictability. With the issuance of a presumptively appropriate temporary maintenance order determined pursuant to the formulaic approach, the payor spouse was left in a quandary as to whether to continue to pay household expenses or simply stop making any such payments. With the beginning of 2012, the Appellate Division, First Department, presumably resolved this dilemma stating, “But, in the absence of a specific reference to the carrying charges for the marital residence, we consider it reasonable and logical to view the formula adopted by the new maintenance provision as covering all the spouse’s basic living expenses, including housing costs as well as the costs of food and clothing and other usual expenses.”8 Following the First Department’s construction of the tem-

Governor from 1991 to 1994. Moore earned a law degree from St. John’s University and a Bachelor of Science from the School of Industrial and Labor Relations at Cornell University, where she is a member of the Board of Trustees.

The 11th annual award presentation will take place Thursday, February 28, at the Home of Law, 14 Vesey Street, Manhattan at 6 p.m. — NYCLA and MBBA are welcome to R.S.V.P. for the event on

porary maintenance statute, the Second Department vacated a support order requiring the payor spouse to pay both temporary maintenance calculated pursuant to the formula and “100% of certain carrying charges on the marital residence.”9 Consistency, maybe. As a 2013 New Year’s present, the First Department, on January 3, 2013, handed down a Decision which may well conflict with its holding in Khaira. InNederlander v Nederlander, 2013 WL 28258 (1st Dept. 2013), the First Department affirmed the Motion Court’s directing, pursuant to DRL § 234, the defendant spouse to make mortgage payments on the mortgage secured by the marital residence under the theory that such payments were necessary to “prevent dissipation of marital property.” While the Nederlander case was commenced prior to the effective date of the temporary maintenance statute, would not the same logic apply in order to preserve marital assets in a post temporary maintenance statute case? Does the

Elizabeth D. Moore, General Counsel of Consolidated Edison Company of New York

intent of Nederlander do violence to Khaira and Woodford? Louis Newman, Esq., and Briana Denney, Esq. are partners of Newman & Denney P.C., a full service matrimonial and family law firm located in Midtown Manhattan. Newman and Denney are members of NYCLA and its Matrimonial Law Section, with Denney serving as CoChair. References: 1. Scott M. v Ilona M., 31 Misc.3d 353 (Sup. Ct. Kings Co. 2011); C.K. v M.K., 31 Misc.3d 937 (Sup. Ct. Rockland Co. 2011). 2. Assembly Mem in Support, 2010 McKinney’s Session Laws of NY, at 1943. 3. Khaira v Khaira, 93 AD3d 194 (1st Dept. 2012). 4. Scott 5. DRL§ 236 (B)(5-a)(c)(2). 6. DRL § 236 (B)(5-a)(e)(1). 7. Khaira, id. at 200. 8. Khairaid. 9. Woodford v Woodford, 100 AD3d 875 (2nd Dept 2012).

February 2013 / The New York County Lawyer



Dignity Rights in a Digital Age tion, sentencing), equality (discrimination, affirmative action), and fraternity (reputation, civic responsibility). It affects cases involving civil and political rights (voting, expression, equality), and socio-economic rights (housing, medicalcare, employment, pensions). It helps define, and in some cases limit, other rights (life, privacy, criminal punishment). The constitutional courts of Hungary and South Africa, in fact, have invalidated capital punishment statutes on dignity grounds. In short, as the author concludes, dignity is ushering in a new foundation for human rights across the globe: it is how we describe what legal claims people can assert to insist that their humanity be recognized.

By Frank Taddeo, Esq.

De Tocqueville hated abstraction. “Nothing is so unproductive for the human mind as an abstract idea,” he wrote. An abstract word he likened to “a box with a false bottom; you may put in it what ideas you please and take them out again unobserved.”

Imagine his evaluation of a word like “dignity,” especially in association with legal rights—a word with no fixed definition, inherently ambiguous at its core, capable of light or indiscriminate interpretation, and carrying no philosophical or political pedigree on the order of rights on banners at the barricade like, say, liberty, equality, and fraternity. In antiquity only the privileged enjoyed socalled “dignitas” or respect; Aquinas asserted it powerfully in a religious context as an attribute all men share in reflection of God’s image; it was uncoupled from social hierarchy and applied to individuals as late as the Renaissance and applied to the public in general; and eventually it appeared prominently in the work of Immanuel Kant who declared it a legal ideal. For most of modern history, however, it had virtually no status in law beyond occasional use as anaromaticcondiment of sorts, sprinkled on decisions involving age-old rights. Imagine de Tocqueville’s surprise, therefore, if he were to learn that in the past 60 years, as Weidner University professor, Erin Daly, so ably illustrates in Dignity Rights, Courts, Constitutions, and the Worth of the Human Person (University of Pennsylvania Press), dignity has become an honored value at the international level and in most of the world’s constitutions, invoked in fact far more frequently than other constitutional guarantees. Mentioned prominently in the Universal Declaration of Human Rights, the United Nations has designated dignity the foundational underpinning of all other human rights. Germany, Italy, Japan, Israel, and South Africa all have explicit constitutional clauses protecting a “right to dignity,” and an actual, tangible right on its own, Germany expressing it as both a positive right obliging the

state to accord dignity and a negative right preventing the state from denying it. In these countries and in several Latin American ones as well, a right to dignity is actionable; and while in most other countries it is not as yet, some, like India, Canada, and Hungary, with strong references to it in their constitutions, have issued favorable judicial decisions on various claims framed as impairments of human dignity. The constitutions and courts of other nations, according to Daly, while not identifying an absolute right to dignity, do associate it with a broad range of subjects involving core rights: liberty (abor-

In America as well? The answer is a definitive “No,” as Professor Daly clearly indicates. Dignity appears nowhere in the Constitution. Paine, Jefferson, and Hamilton did allude to the “natural dignity of man,” and the idea does appear periodically in the Federalist Papers, but it had little influence on the creation of the foundation documents of the Republic, including the Bill of Rights, and very little on American jurisprudence thereafter. The Supreme Court has always been much more comfortable attaching dignity to inanimate things such as states, courts, and contracts rather than human beings. The Court did cite it in Miranda v. Arizona prohibiting police from coercing confessions; and it has applied it in search and seizure cases and most prominently to Eighth Amendment claims by convicted inmates.

However, the Court never mentioned it in Brown v. Board of Education (invalidating racial segregation in schools), Rowe v. Wade (upholding a privacy based right to abortion), Griswold v. Connecticut (invalidating a ban on contraception), Virginia v. Black (upholding limitations on racist speech), and Atkins v. Virginia (invalidating the death penalty for the mentally retarded). And despite some dissenting opinions insisting that the Court follow the lead of the rest of the world in promoting dignity rights, human dignity has no constitutional status in the United States and, as the author concludes, is unlikely to attain it anytime soon. That Ms. Daly looks with favor upon the assertion of dignity as a progressive trend in the world’s collective jurisprudence is quite obvious. To her credit, she recognizes the contradictions inherent in dignity’s protean definition, in abortion cases, for instance, where it could be cited to safeguard a fetal interest in life and just as strongly a woman’s interest in bodily integrity and autonomy, or where it could be applied on both sides of religious veil and speech rights cases. She concedes the blur that the concept creates between legislative and judicial powers, political theory on the one hand and law on the other, legal rights as such versus entitlements, i.e. access to benefits based on long established, other rights, and religious principles versus legal doctrine. She identifies its arrival on the world scene so powerfully in large part because of the (See Dignity Rights on Page 15)

Women in Afghanistan: Today and Tomorrow On Monday, March 11 at 6 p.m., join NYCLA’s Justice Center and Foreign and International Law and Women’s Rights Committees for a special presentation at NYCLA, Home of Law, by Manizha Naderi, executive director of Women for Afghan Women, on the current status of women in Afghanistan and what the future holds.

Manizha Naderi was born in Kabul, Afghanistan and raised in New York and New Jersey. She holds a Bachelor of Arts degree in English Language Arts from Hunter College. While she has roots in the Afghan community in Queens, NY, she and her family now divide their time between NYC and Kabul.

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February 2013 / The New York County Lawyer

RECENT EVENTS 2012 Annual Dinner Celebrating LGBT Equality and Honoring Law Firms and Corporations that have Demonstrated an Exceptional Commitment to LGBT Equality At NYCLA’s 2012 Annual Dinner on December 11 at the Waldorf-Astoria, the New York legal community celebrated LGBT equality and honored corporations and law firms that have demonstrated a commitment to LGBT equality. For additional photos, visit our virtual photo album at

Annual Dinner Honorees and Honored Dais Guests Left to right: Hon. Carmen Beauchamp Ciparick, Associate Judge, New York Court of Appeals; Hon. Robert S. Smith, Associate Judge of the Court of Appeals; Hon. Jonathan Lippmann, Chief Judge of the State of New York.

Front (left to right): Sue C. Jacobs, Goodman & Jacobs, Boris Kostelanetz President’s Medal Honoree; Maureen A. Brundage, General Counsel, The Chubb Corporation; Robert L. Haig, Kelley Drye & Warren LLP, Dinner Co-Chair; Roberta A. Kaplan, Paul, Weiss, Rifkind, Wharton & Garrison LLP, William Nelson Cromwell Honoree; Hon. Jonathan Lippman, Chief Judge of the State of New York; Glenn B. Coleman, Bryan Cave LLP; Rosalind S. Fink, Brill & Meisel; Hon. Loretta A. Preska, Chief Judge, United States District Court, Southern District of New York; Hon. Eric T. Schneiderman, Attorney General of the State of New York; Professor Arthur S. Leonard, New York Law School; Hon. Carmen Beauchamp Ciparick, Associate Judge, New York Court of Appeals; Stewart D. Aaron, Head of New York Office, Arnold & Porter LLP, NYCLA President. 2nd Row (left to right): Gene DeFelice, General Counsel, Barnes & Noble Inc.; Michele Coleman Mayes, General Counsel, The New York Public Library, Dinner Co-Chair; Pierre Bonnefil, Epstein Becker & Green P.C.; Susan L. Blount, General Counsel, Prudential Financial Inc.; Hon.Victoria A. Graffeo, Associate Judge, New York Court of Appeals; Hon. Michael R. Sonberg, Justice, New York County Supreme Court, President, Association of Lesbian and Gay Judges of New York; Pieter Van Tol, Hogan Lovells US LLP. 3rd Row (left to right): Michael B. Solow, Managing Partner, Kaye Scholer LLP; Hon. Robert S. Smith, Associate Judge, New York Court of Appeals; William J. Honan, Executive Partner, New York Office, Holland & Knight LLP; Blaine Templeman, Office Administrative Partner, Sheppard, Mullin, Richter & Hampton LLP; Jeffrey A. Hovden, Robins, Kaplan, Miller & Ciresi LLP; Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, New York University School of Law; Carey R. Dunne, Davis Polk & Wardwell LLP; Hal R. Lieberman, Partner-in-Charge, New York Office, Hinshaw& Culbertson LLP; William F. Cavanaugh, Jr., Co-Chair of the firm, Patterson Belknap Webb & Tyler LLP.

Rosalind S. Fink, Brill & Meise, (right) presents the Boris Kostelanetz President’s Medal to Sue C. Jacobs, (left) Goodman & Jacobs for her record of dedication and service to the Association and the legal profession.

Dinner Co-Chair, Robert L. Haig, (left) Kelley Drye & Warren LLP, presents retiring Associate Judge, New York Court of Appeals, Hon. Carmen Beauchamp Ciparick (right) with a framed certificate in recognition and appreciation of 34 years of distinguished and dedicated judicial

Kenji Yoshino, (left) Chief Justice Earl Warren Professor of Constitutional Law, New York University School of Law, presents the William Nelson Cromwell Award to Roberta A. Kaplan, (right) Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP, for her unselfish service to the profession and the community.

Left to right: Stewart D. Aaron, Head of New York Office, Arnold & Porter LLP, NYCLA President; Roberta A. Kaplan, Paul, Weiss, Rifkind, Wharton & Garrison LLP, William Nelson Cromwell Honoree; Sue C. Jacobs, Goodman & Jacobs, Boris Kostelanetz President’s Medal Honoree; Michele Coleman Mayes, General Counsel, The New York Public Library, Dinner Co-Chair; and Robert L. Haig, Kelley Drye & Warren LLP, Dinner Co-Chair.

New York City Council Speaker Christine C. Quinn presents Welcome remarks.

February 2013 / The New York County Lawyer


UPCOMING EVENTS All events, unless otherwise noted, will be held at NYCLA Home of Law, 14 Vesey Street. Visit the Association’s website, for more details, schedule changes and additions, and to R.S.V.P. for events, which are subject to change.

in becoming an arbitrator in this program must be admitted to the New York State Bar for at least five years. E-mail a resume and cover letter highlighting any relevant experience to Lois Davis, Director of Pro Bono Programs at as soon as possible and no later than February 4.

February 14th Annual FINRA Listens... and Speaks Monday, February 4 - 5 p.m. Sponsored by NYCLA’s Arbitration & ADR; Labor Relations & Employment Law; and Securities & Exchanges Committees Katherine M. Bayer, Esq. Director, Northeast Regional Office, FINRA Dispute Resolution, will provide updates, including FINRA’s recent experience with investors’ opting for an all-public arbitration panel and will discuss recent initiatives. Training: Part 137 Attorney-Client Fee Dispute Resolution Program Arbitrators and Mediators Monday, February 11 – 8:30 a.m.-5 p.m. Sponsored by the Joint Committee on Fee Disputes and Conciliation Arbitrators and mediators are invited to attend complimentary training that will prepare participants for the program which provides for the resolution of fee disputes between attorneys and clients through arbitration and mediation. Attorneys interested

Guinness Beer Tasting Tuesday, February 19 Sponsored by NYCLA’s Young Lawyers’Section Join the Young Lawyers’ Section for an evening of food and drink with colleagues hosted by Guinness. Learn the history and heritage of the Guinness brand while tasting various beers and learning pouring tricks. Members-only event. Not a member and interested in attending? Learn more about our membership program.

Reception Honoring Newly Elected, Appointed, Re-Elected and Re-Appointed Judges Tuesday, February 26 - 5:30 p.m. Sponsored by NYCLA’s Committee on the Supreme Court Welcome remarks by Hon. A. Gail Prudenti, Chief Administrative Judge of the Courts of New York State. Special remarks by Hon. Kristin Booth Glen, Surrogateretired, Surrogate’s Court, County of New York. Reception open to NYCLA members or by invitation-only.

Ida B. Well-Barnett Justice Award Ceremony Thursday, February 28 – 6 p.m. Sponsored by NYCLA and the Metropolitan Black Bar Association Named for Ida B. Wells-Barnett, one of the first African American women to run for public office in the United States, the award is presented to a woman of color whose life reflects her spirit and courageousness by distinguishing herself in the right for racial and gender equality. Honoree: Elizabeth D. Moore, General Counsel of Consolidated Edison Company of New York, Inc. Open to NYCLA and MBBA members.

March Agents, Managers & Entertainment Attorneys: What the Heck Do They Do? Monday, March 4 - 7 p.m. Sponsored by NYCLA’s Entertainment, Intellectual Property, & Sports Section Are you interested in entertainment industry matters? Attend this panel discussion between an agent, a manager, and entertainment attorney and learn the differences in such roles. Gain insight into when an attorney might want to direct an entertainment client to speak with an agent or a manager instead of taking on a task he/she isn’t comfortable with or fit to do.

In Practice Wednesday, March 6 - 12:30-1:30 p.m. Sponsored by NYCLA’s Young Lawyers’ Section This “In Practice” event will feature guest host Michael A. Cardozo, Corporation Counsel, City of New York. Members only event. Women in Afghanistan: Today and Tomorrow Monday, March 11 - 6 p.m. Sponsored by NYCLA’s Justice Center and Foreign and International Law and Women’s Rights Committees This forum will feature a special presentation by Manizha Naderi, executive director of Women for Afghan Women on the current status of women in Afghanistan and what the future holds. Free and open to the public. 50th Anniversary of Gideon v Wainright Monday, March 18 – 5:30 p.m. Sponsored by Arnold & Porter, LLP, NYCLA’s Justice Center, Federal Courts Committee and Criminal Justice Section Join NYCLA for this event commemorating the 50th anniversary of the landmark Gideon v Wainwright case. The program, which will begin with a film, will include a panel of federal and state prosecutors and defenders followed by a reception.

RECENT EVENTS 2012 Annual Dinner (Continued from page 8)

New York State Attorney General Eric T. Schneiderman presents Keynote remarks.

Honored dias guests enjoy a musical performance by NYCLA members

Nearly 1,000 members of the New York legal community attended the 2012 Annual Dinner.

Criminal Justice Leaders Meet to Discuss Racial and Ethnic Disparity in the Criminal Justice System On October 17-19, NYCLA co-sponsored an historic conference, Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparity in the Criminal Justice System. Panelists and participants engaged in a wide-ranging and candid dialogue about racial disparities that focused on practical recommendations for reform. A conference report will be published shortly.

Vanita Gupta, Deputy Legal Director, ACLU, spoke on a panel about stakeholders in the criminal justice system during the first day of the conference (Left): Conference participants from the criminal justice field participated in lively discussions of Charging, Plea Bargains, Diversion; Pretrial Incarceration; Jury Selection; Pretrial Litigation on Search and Seizure and Identification Issues; Sentencing and Community Corrections; and Community Justice

10 February 2013 / The New York County Lawyer


How to stay on top of Hot Topics in Law Many good practitioners have developed the habit of reading the New York Law Journal on a daily basis. If you subscribe to the paper you can read it in print or online at If you are a regular with the NYLJ you know that for some time now the Decisions of Interest are only available online to subscribers of the NYLJ. The articles, case summaries, and cases in the New York Law Journal should be kept abreast of, even when not read closely.

semiannual review of hot areas of law practiceat Robert Denney Associates, Inc is a management, marketing and strategic planning company. The RDA Communiqués are updated monthly with articles of interest to attorneys, and twice a year, for the last 24 years, there have been articles on “What is Hot, and What is Not in the Legal Profession” (see: http://www.robert

If you don’t have a subscription you can register for daily emails of the New York Law Journal and other ALM products such as the National Law Journal and the Legal Times and thus, through the headlines and free content, keep an eye. This is one good way to stay on top of legal developmentsand to monitor what is going on.

gain access to special services from the State Library in Albany, including remote access to over ninetyfive specialized databases (four of which are legal databases) at no charge—your tax dollars at work. Changes in the Library All libraries are moving away from gathering and distributing current materialin print and are moving toward a more digital future. The NYCLA Library is no exception and over the last few years you may have seen print books which are now being kept current through Westlaw and other services. This conversion from print to digital will continue and the pace of change will be picking up. In the next month you will see the library introduce WestlawNextand enhanced databases, including access to New Jersey treatises and formbooks.

Another site to monitor is JD Supra is a repository of free legal information shared by the professionals who generate it. Not only do they offer lists of hot topics in law but provide links to articles written by lawyers on the topics. If you are a writer, you may also explore how to have the site host your works.

If you already have an area of practice, speak to colleagues and ask what they regularly read to stay abreast of their practice area. As an example, practitioners in a Landlord/Tenant law regularly review the Apartment Law Insider and Landlord v Tenant, two publications from the Vendome Real Estate Media.

Those who hold the New York State Library-Attorney Borrowers Card have access to a multitude of resources, law and otherwise. One source made available to NYSL-ABC holders is LegalTrac an index to over 1,600 legal periodical (which also provides access to over 200 legal periodical in full text). If

For a more general approach to spotting hot topics in law I look at Bob Denney’s

While our on-site patrons will see change and improvement in our offerings, so will our off-site patrons who regularly call and email the NYCLA Library and utilize the NYCLA Library fee based services. We will continue to PDF Records & Briefs, old sections of the NYCRR and Legislative History materials. We will continue to provide copies of old treatises, law review articles and cases, and articles from the New York Law Journal. We will continue to offer research services to the profession.

one were interested in hydrofracking or cybersecurity and the law this index can be invaluable in staying on top of the relevant literature. Spotting Hot Topics is one task. How to use the information in your firm is another task. For advice on this matter I turn to the New York State Bar Association publication, Best Practices in Legal Management – A Comprehensive Guide. This book is available to holders of the New York State Library – Attorney Borrowers Card in the Loislaw database, in the “Secondary Law-Bar Publications” file. This treatise gives practical, step-bystep advice on focusing on a niche market, how to break in, the importance of monitoring competitors in an area, and the importance of speaking and writing on the area of law.

In addition, we are developing a new product mix which we hope will be of interest to all NYCLA members. We are particularly interested in offering meaningful services to NYCLA members who haven’t used the library services. Stay tuned for information on these new services. The NYCLA Library fee-based services offer good value.

For information on the New York State Library – Attorney Borrowers Card contact NYCLA’s Director of Library Services, Dan Jordan, This card is only available to New York State residents who are admitted to practice in New York. Holders of the NYSL-ABC

Please direct all questions about this article or about the NYCLA Library in general to Dan Jordan , Director of Library Services, New York County Lawyers’ Association, 212-267-6646.

Digital Training Center CLE Programs Unless otherwise noted, courses are free and open to the public. Register at Questions? Contact Irina Chopinova at or 212-267-6646 x203.


Lexis: I February 6 - 10:30-11:30 a.m. 1 MCLE Credit: 1 Skills; Transitional

Finding Case Law on February 6 - 12-1 p.m. 1 MCLE Credit: 1 Skills; Transitional

Lexis: New York Statutory, Legislative & Regulatory Research February 6 - 1:30-2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Westlaw: Advanced February 14 - 10-11 a.m. 1 MCLE Credit: 1 Skills; Transitional

Westlaw: Employment February 14 - 11:30 a.m.-12:30 p.m. 1 MCLE Credit: 1 Skills; Transitional

U.S. Bankruptcy Court Electronic Case Filing System February 20 - 10 a.m.-12:30 p.m. 2.5 MCLE Credits: 2.5 Skills; Transitional (Also NJ) Member: $65 Non-member: $85 Nonlegal Staff: $35

Using for Litigation February 21 - 10-10:50 a.m. 1 MCLE Credit: 1 Skills; Transitional (Also NJ)

Using for a Corporate Transactional Practice February 21 - 11:05-11:55 a.m. 1 MCLE Credit: 1 Skills; Transitional (Also NJ) Westlaw: Basic February 26 - 1:30-2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Westlaw: Entertainment February 26 - 3-4 p.m. 1 MCLE Credit: 1 Skills; Transitional

February 2013 / The New York County Lawyer 11

Advice for Attorneys Regarding Employment Rights for Cancer Patients By Andrew Ricci

When a patient is diagnosed with cancer, accepting the fact that one has cancer is difficult enough. It takes courage worthy of a medal to face surgery, followed by superhuman endurance and strength to undergo seemingly endless courses of chemotherapy and/or radiation. The thought that one may have to continue to work while simultaneously suffering from the sickness, nausea, and loss of hair that accompanies treatment may seem unthinkable and unfair. Unfortunately for many, the reality is that even with leave afforded under the Family Medical Leave Act (FMLA)1 patients may need to work through part or all of their battle with cancer in order to maintain their employment, health insurance, and income. To add insult to injury, many cancer patients face discrimination in the workplace that can be intolerable or even lead to termination, whether legal or not.

The good news is that you do not need to be an employment lawyer to counsel clients with cancer regarding several basic points that can make the experience more bearable and help them avoid certain pitfalls in the workplace.

An attorney first must know the applicable laws. For those who are not employment attorneys, the basic laws you should be familiar with include the Americans with Disabilities Act (ADA)2, FMLA, and the Rehabilitation Act §501 (Rehab Act)3. Moreover, state, county, city and municipal laws may also provide greater protection or better define key terms. A combination of the protection afforded under these laws can be used to help your clients get the most

and best protection to fit their particular circumstances. In some cases, this can mean the difference between being able to work through the illness and losing their job.

There is some ambiguity and room for interpretation in the law and questions may arise as to how the terms are actually applied. Knowing the law may not be dispositive and your client may not be covered at all or may be covered by a combination of laws. For example, the ADA only applies to employers with 15 or more employees. However, the NYS state Executive Law 292 et seq. provides broader protection by defining an employer as someone with no fewer than four persons in his or her employ. Likewise, in New York City, the NYC Human Rights Law Administrative Code §8-102 et seq. also defines an employer as someone with four or more employees.

The FMLA provides eligible employees with 12 weeks of unpaid leave in a 12month period. The question then arises, who is eligible and how is the 12-week leave period calculated? To be eligible under the FMLA, an employee must work for an employer with 50 or more employees within 75 miles of the worker’s location; have worked for the employer for a total of 12 months; and have worked at least 1,250 hours over the previous 12 months.

Regarding how the 12-month period is calculated and how the 12-week leave may be taken depends on the employer. Under the FMLA, the employer may determine how the 12-month period is calculated. For instance, the 12 months can be measured (See Patients’ Rights on Page 14)

Eliminating Discrimination in the Workplace By Karen Jalkut and Jeffrey T. Zaino, Esq. Workplace bias and discrimination can cause countless problems for a company and its employees. A few examples include high absenteeism, low morale, low productivity, high turnover, workplace violence, and lawsuits. This article will look at what constitutes workplace discrimination, why it occurs and manifests, and what can be done to eliminate such discrimination in the workplace.

Bias and Discrimination It is not unusual for individuals to congregate around people with shared attributes. It is also not uncommon for a person to feel some degree of unease, be it negative or positive, around a person that he or she deems to be different. This, however, does create silos among employees and becomes problematic if these natural biases manifest into discrimination by employees and managers through inappropriate speech, behavior, and managerial oversight.

Statutory and Non-Statutory Discrimination When faced with a workplace bias compliant or case, most attorneys think in terms of statutory discrimination. Title VII of the Civil Rights Act of 1964 broadly covers, “employment discrimination based on race, color, religion, sex, and national origin.” Federal statutes also prohibit age and disability discrimination through the Age Discrimination in Employment Act of 1967 (ADEA) and the Americans with Disabilities Act of 1990 (ADA). These laws also make it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. There are, however, many other forms of discrimination not contained in Title VII, the ADA or ADEA that can cause unhealthy work environments. State statutes also prohibit a wide range of discriminatory conduct.

Discriminatory jokes and teasing by email, texting, Internet downloads, singing, music and verbally are examples of harmful and unacceptable forms of speech. Other discriminatory forms of behavior can come from pictures, posters, graffiti, bullying, harassment, threats and violence. In connection with their role in preventing employment discrimination in the workplace, managers must also be mindful that their managerial oversight of employees is not discriminatory. Even the slightest appearance of discrimination is problematic for the workplace. It is common for employees to feel discriminated against if bypassed for promotions or raises, given less desirable work and travel assignments, or overloaded with work. Managerial decisions in a workplace should always be based on an employee’s performance and needs of the company and its employees. (See Workplace Discrimination on Page 13)

Definitions of “Disability” Under Various Laws

Family and Medical Leave Act (FMLA) of 1993 1 42 U.S.C. Chapter 28 (1993)

§ 825.113 Serious health condition.

(a) For purposes of FMLA, “serious health condition” entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in § 825.114 or continuing treatment by a health care provider as defined in § 825.115. (b) The term “incapacity” means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.

Americans with Disabilities Act (ADA) of 1990: 2

42 U.S.C. §§12101 et seq. (1990), (1) Disability

The term “disability” means, with respect to an individual

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or

(C) being regarded as having such an impairment (as described in paragraph (3)). (2) Major Life Activities (A) In general

For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. (B) Major bodily functions

For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. (3) Regarded as having such an impairment

For purposes of paragraph (1)(C):

(A) An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. (B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less. (4) Rules of construction regarding the definition of disability

The definition of “disability” in paragraph (1) shall be construed in accordance with the following: (A) The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.

(B) The term “substantially limits” shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.

(C) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.

(D) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. (E)

(i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as (I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; (II) use of assistive technology;

(III) reasonable accommodations or auxiliary aids or services; or

(IV) learned behavioral or adaptive neurological modifications.

(ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity. (iii) As used in this subparagraph

(I) the term “ordinary eyeglasses or contact lenses” means lenses that are intended to fully correct visual acuity or eliminate refractive error; and (II) the term “low-vision devices” means devices that magnify, enhance, or otherwise augment a visual image.

Sec. 12103. Additional definitions As used in this chapter

(1) Auxiliary aids and services

The term “auxiliary aids and services” includes

(A) qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;

(B) qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments; (C) acquisition or modification of equipment or devices; and

(See Definition of Disbility on page 15)

12 February 2013 / The New York County Lawyer

The New York Center for Neuropsychology & Forensic Behavioral Science Dr. N.G. Berrill, Director

[ Over 25 Years \ Providing Consultation to Attorneys & the Courts on Psycho-legal Matters

NYCLA Comments on and Supports Issues NYCLA frequently reports, comments, and supports issues affecting the New York City legal community and has recently commented on or supported the following issues: • Criminal Justice Section Submits Comments to the New York State Permanent Sentencing Commission Regarding the Determinate Sentencing Proposal for NonViolent, Non-Sex, Non-Drug Felonies

• Civil Rights & Civil Liberties Committee Sends Letter in Support of New York City Council Bill 8812012 Creating a Municipal Office

Your Data Exposed (Continued From Page 3)

• 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

MAIN OFFICE 26 Court Street, Suite 1711, Brooklyn, NY 11242 718-237-2127 LONG ISLAND OFFICE 45 North Station Plaza, Suite 404, Great Neck, NY 11021 516-504-0018 MANHATTAN 139 Manhattan Avenue, New York, NY 10025 212-280-3706


problems — the federal laws in existence regulate only certain entities (such as healthcare providers or financial institutions); however, what happens if a third party has been entrusted with personal data and fails to secure it? As an illustration, what happens in the situation where a law firm loses sensitive data provided by a client due to a stolen hard drive or laptop? Would they be liable for a privacy violation?16 And to avoid FTC enforcement, what if a company simply decides not to have a privacy policy so that it cannot mislead consumers as to what it is doing with their data? In a report issued in 2012, the White House presented its framework for passing privacy legislation. It presented a Consumer Privacy Bill of Rights that it hopes will be passed by legislation or voluntarily adopted in the absence of legislation.17 It further outlined a process for interested parties to agree on an enforceable code of conduct, provided for greater enforcement by the FTC, and encouraged attempts to harmonize policies across countries.

In the meantime, more and more individuals and businesses are turning to cloud computing, leading to growing concern that the lack of a comprehensive framework for privacy and security of personal data could slow future innovations in such technology.18 For now, in the absence of a unifying legislative framework, clear privacy policies, disclosures to consumers about the treatment and security of their information, and opt-ins have become best practices to address data privacy concerns.

Jane Chuang is a NYCLA and Entertainment, Intellectual Property, and Sports Section member, and is a partner at Lee Anav Chung LLP. She practices general commercial litigation, and advises on trademark, copyright and media law issues.

References 1. Electronic Privacy Information Center (“EPIC”), In the Matter of Google, Inc. (FTC, Feb. 2010), available at Buzz_Complaint.pdf 2. Tricia Bishop, Law Firm Loses Hard Drive with Patient Records, The Baltimore Sun, available at news/maryland/bs-md-stent-hard-drive20111010,0,599052.story (Oct. 10, 2011).

of the Inspector General for the New York City Police Department

• NYCLA President Stewart D. Aaron sends letter to NYSBA on the Proposal to Amend the NY CLE Requirements for Newly Admitted Attorneys • Civil Rights & Civil Liberties Committee and Criminal Justice Section Submit Comments to NYSBA on the Use of Solitary Confinement in New York State and City Prisons

Learn more on the News & Publications section of

3. Frederic Lardinois, PleaseRobMe and the Dangers of Location-Based Social Networks, Readwrite (Feb. 17, 2010), available at pleaserobme_and_the_dangers_of_locationaware_social_networks. 4. Brett Molina, Instagram Updating Policy After Photo Backlash, USA Today (Dec. 19, 2012), available at story/tech/2012/12/18/instagram-privacypolicy-advertisers/1777005/. 5. Pub. L. 104-191; 45 CFR Parts 160 and 164 (Privacy Rule). 6. Pub. L. 106-102. 7. 15 U.S.C. § 6501 et seq.; 16 CFR Part 312. 8. 15 U.S.C § 41 et seq. 9. FTC, Press Release, Google Will Pay $22.5 Million to Settle FTC Charges It Misrepresented Privacy Assurances to users of Apple’s Safari Internet Browser, Aug. 9, 2012, available at 10 FTC, Press Release, FTC Charges Deceptive Privacy Practices in Google’s Rollout of Its Buzz Social Network, March 30, 2011, available at 11. Miguel Helft, Critics Say Google Invades Privacy with New Service, N.Y. Times (Feb. 12, 2010), available at 12. FTC, FTC Charges Deceptive Privacy Practices, available at .13. FTC, Press Release, Myspace Settles FTC Charges That It Misled Millions of Users About Sharing Personal Information with Advertisers, May 8, 2012, available at m; FTC, Press Release, Facebook Settles FTC Charges That It Deceived Consumers by Failing to Keep Privacy Promises, Nov. 29, 2011, available at 14. Cal. Bus. & Prof. Code §§ 22575 to 22577. 15. EPIC, EU Data Protection Directive, available at data_protection_directive.html (last accessed Jan. 14, 2013). 16. See Bishop, Law Firm Loses Hard Drive, available at,0,599052.story. 17. The White House, Consumer Data Privacy in a Networked World: A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy (Feb. 2012), available at s/privacy-final.pdf, at 1-2. 18. Justin Brookman, Op-ed, Why the US Needs a Data Privacy Law – and Why It Might Finally Get One, Ars Technica (July 18, 2011), available at

February 2013 / The New York County Lawyer 13

The 7 Sins of E-Newsletters By Fred J. Cohen, J.D.

that they will send your message to their spam folders. A handful of these “spam marks” and you may find your e-mail account on a few blacklists.

You draft a clever e-mail message and send it off to hundreds, or even thousands, of contacts and there you have it — your firm’s monthly e-newsletter. Seems simple but without the right software and messaging, these e-mail blasts may do more harm than good. If you’re sending out e-newsletters as part of your firm’s ongoing marketing strategy, make sure you’re not committing one, or several, of the unfortunate sins listed below:

E-Newsletter Sin #1: You can see all other recipients listed

If you asked any attorney if he or she would provide you with a list of their clients, they’d be quick to deny your request. But without an e-mail program designed to properly send an individual e-mail to all recipients, you very well may be sharing your client list with all of your contacts.

Workplace Discrimination (Continued From Page 11)

Workplace Solutions Employers should draft and distribute to all employees a Policy Code of Conduct for a discrimination-free workplace. It is important to implement the Code company-wide and establish clear lines of authority for those who are going to enforce it. A message should be from top down that discriminatory speech and behavior will not be tolerated. It is not merely enough to distribute a Code and put it on a workplace bulletin board, it is a matter of corporate culture that must be practiced from the board room to the bathroom. All employees should be trained on the details of the Code. All employers should have a well-defined complaint process. Also, someone should be available to help the employee complainant with the processing of his or her complaint. Once the complaint is filed, it should be investigated promptly. The investigator must be extensively trained in how to properly investigate and report on their findings and recommendations. The investigator should look beyond Title VII types of discrimination. It is important to find out what remedy the employee complainant seeks. If it is early in the process, the only remedy sought might be nothing more than an apology and promise that it (whatever it is) will not happen in the future. The employer is then on notice and the employee or employees responsible should be reprimanded and monitored to ensure no repeat acts of discrimination occur. You do not want to re-victimize the victim. In addition to investigating individual disputes by employee complainants, an employer should initiate fact-finding TO ADVERTISE IN THE NEW YORK COUNTY LAWYER CALL 631-427-7000

E-Newsletter Sin #3: The newsletter is delivered at a time when most are not checking e-mails

E-Newsletter Sin #2: There is no way to unsubscribe

One quick way to get your email address added to spam lists is to send out newsletters without an unsubscribe feature. Undoubtedly, there will be recipients who no longer wish to receive the mass e-mails and without the option to opt out from future mailings, it’s likely investigations when faced with repeated or similar type employee complaints, or claims. An investigator and fact-finder can conduct an extensive investigation, evaluate ongoing disputed facts between the employer and employees, and provide the employer and its management team with a better understanding of what is creating a negative environment. Employers should also have an alternative dispute resolution process available to complainants should no resolution or settlement occur following an investigation. Mediation and/or arbitration provide a private forum that can effectively and efficiently resolve discrimination claims that could otherwise be embarrassing for both the employer and employee if resolved in a public forum. The majority, if not all costs, of the mediation and/or arbitration process should be borne by the employer and the employee should have equal access to information and a say in the selection of the mediator and/or arbitrator. Discrimination can come in all forms and types in a workplace. If employers and employees work together they can create a discrimination free workplace that goes beyond just eliminating the more traditional forms of discrimination. Karen Jalkut is the Vice President of the Labor, Employment and Elections Division of the American Arbitration Association in Boston. She oversees the operations, development and panel of arbitrators for the Labor and Employment Arbitration caseloads in New England. Jeffrey T. Zaino, Esq., a NYCLA member, is the Vice President of the Labor, Employment and Elections Division of the American Arbitration Association in New York. He oversees the operations, development and panel of arbitrators for the Labor and Employment Arbitration caseloads in New York.

Without the ability to preschedule newsletters, many attorneys send out their e-mail blasts when they have some free time — very early in the morning or late in the evening once the billable work is done. For optimal results, avoid sending out e-blasts before 10 a.m. or after 8 p.m. Most experts agree that lunch time and just before dinner is best because this is when most people check both their professional and personal e-mail accounts. E-Newsletter Sin #4: The message is promotional and not informational

Every once in a while, you can get away with sending a message to your clients and colleagues promoting your services but as a general rule of thumb, make sure that all of your monthly e-blasts deliver some sort of value to your recipients.

E-Newsletter Sin #5: The e-mail does not stand out in that crowded inbox

Your newsletter should not be a plain email message. Just as with all marketing

pieces, it should be visually appealing with your branding to make sure it is noticed and most importantly recognized as a message from your firm. E-Newsletter Sin #6: Your messages are just rather boring

Although you probably love your area of practice and related subject matter, it’s likely that all of your recipients may not share your same interest level. Just as with website copy, make sure that you are writing for your audience in a language they can understand. To keep things interesting, you may consider including some general interest articles which are not legal in nature but still interesting.

E-Newsletter Sin #7: You just have one recipient list and one message for all of your contacts

If you want to implement a really effective e-newsletter campaign, it’s essential that you create multiple mailing lists which will allow you to draft more targeted messaging. Depending on your practice, you may have one list for current clients, one list for fellow advisors and yet another for referral sources. Fred J. Cohen, J.D., is the founder and President of Amicus Creative Media, an attorney web design and marketing company (, and a NYCLA member benefit partner. He can be contacted at 877-269-0076.

14 February 2013 / The New York County Lawyer

NYCLA In The News A roundup of recent national and local news stories featuring NYCLA and its members January 2, 2013 Top NY Judges Could See Retirement Age Bumped To 80 NYCLA’s President, Stewart Aaron, is quoted in this article about pending legislation that could increase the retirement age for state judges. The article quotes Aaron saying, “It’s regrettable that judges of the caliber of Judge Kaye and Judge Ciparick have been forced to retire too early… I have no doubt that they could have ably served the public for many more years.” The article goes on to say, “Legal associations, including NYCLA and the larger New York State Bar Association, likely would foster an effort to educate voters about why the changes are needed should it pass the legislature, according to Aaron. “I would imagine some sort of public education campaign would be in order when the time came,” he said. “We have able, smart judges that want to continue working in the public interest and right now we don’t let them.” New York Law Journal NYCLA Hosts Annual Dinner December 13, 2012 The Law Journal ran a photo from NYCLA’s 98th annual dinner held on December 11 at the Waldorf-Astoria. It includes a photo of NYCLA’s

President, Stewart Aaron alongside Roberta Kaplan, a partner at Paul, Weiss, Rifkind, Wharton & Garrison who received the William Nelson Cromwell Award; Sue Jacobs of Goodman & Jacobs, who received the Boris Kostelanetz President’s Medal; and dinner co-chairs Michele Coleman Mayes, general counsel, New York Public Library and Robert Haig, a partner at Kelley Drye & Warren. Metropolitan Corporate Counsel Letter from the President of the New York County Lawyers’ Association December 2012 This publication ran an letter from NYCLA’s President, Stewart Aaron, which focuses on how readers can go about making positive changes in their lives and careers in the new year. New York Law Journal NYCLA Holds Holiday Toy Drive November 28, 2012 A photo from NYCLA’s Holiday Season Kickoff and Toy Drive event, sponsored by the Young Lawyers’ Section and held on November 26, appeared in this issue of the Law Journal. The photo is an image of a court attorney placing a toy in the collection box at the event at the event co-sponsored by the Nigerian Lawyers’ Association, the Asian American Bar Association of New York, and the New York Women’s Bar Association, which benefited the U.S. Marine Corps Reserves’ Toys for Tots campaign.

Patient’s Rights (Continued From Page 11)

from the first day of the employee’s leave, by the calendar year, or by the employer’s anniversary date of hire. Whether the 12week unpaid leave runs concurrently or separately from any paid vacation or sick time is also at the discretion of the employer so long as the policy applies to all employees equally. Furthermore, intermittent leave may require that the employee transfer to an alternate position that better accommodates recurring periods of leave. Therefore, it is important to advise your client to review the policy in the employee handbook before requesting leave under the FMLA in order to avoid any unexpected surprises.

One important exception to the FMLA that should be noted is the “key employee” provision under §§ 825.217-9. Under the exception, key employees still have the right to take FMLA leave but the law places limits on the right of key employees to be reinstated to their position. To invoke the exception, the employee must be among the highest paid 10 percent of all employees with 75 miles of the worksite at the time the employee gives notice for leave. The employer must make an assessment that reinstatement (not absence while on leave) of the key employee would cause “substantial and grievous economic injury” to the employer. Importantly, the employer is required to give written notice to the employee that the employee meets the qualification of a key employee at the time the employee makes the request for leave under the FMLA or takes emergency leave. The notice must give the basis for the determination and state that the employee is still entitled to take the leave, although being denied reinstatement at its conclusion. Failure to provide such timely notice will result in the employer being unable to deny reinstatement.

The ADA Amendments Act of 2008 significantly expanded the ADA. Now cancer is defined as a disability because the determination of whether an impairment is a disability is to be made without regard to any mitigating measures. As a result, an employee with a condition that is controlled by medication – such as diabetes, epilepsy, or cancer – is now considered disabled, regardless of the medication’s mitigating effects.

As long as an employee is able to perform the essential functions of the job, then that employee is entitled to a reasonable accommodation to enable the employee to perform the job. A reasonable accommodation is one that would not impose an undue burden on the employer, which is determined on a case-by-case basis. For example, a cancer patient may be able to adjust her work schedule to work extra hours earlier in the week if she knows she must leave the office for treatment later in the week or will not feel well enough to attend work immediately after treatment. Examples of other accommodations may include an aid to lift heavy items, breaks during the day, the ability to work from home several days a week, a place to lie down, or an ergonomic chair.

It’s important to note that the employer does not have to accept the employee’s proposed accommodation. It’s a collaborative process that may involve some give and take. Therefore, to smoothe and simplify the process, when making such a request employees should be very precise in stating exactly what it is they need and how it will let them continue to fully perform their jobs. This way the employer knows exactly what to expect and may be able make a decision immediately without reservation. The better and more precise the request, the more inclined the employer will be to approve it. For example, the employee should state “I need a 15 minute break every two hours;” as opposed to saying “I need to take breaks throughout the day.” In

some cases, a doctor’s note can be helpful to get an accommodation an employer would otherwise be reluctant to give. Also, employees should be prepared for requests to undergo independent medical examinations or provide additional information from treating physicians.

One very important consideration concerns how much information employees should disclose to their employers about their illness. Obviously the employee must reveal that he or she has a disability in order to request a reasonable accommodation. One possible benefit of identifying a disability with the employer is that it can serve as protection against later discrimination. If the employer has actual knowledge of an illness or disability, it will make it much harder to defeat a charge of discrimination if it later takes an adverse action against the employee. Conversely, if the employee does not disclose an illness or disability, in order for the employee to claim discrimination, he or she must show the employer had a belief or actual knowledge of the employee’s disability.

How much detail should employees state about their illness when making a request for an accommodation? The safest and most conservative answer is as little as possible. Although there are many well-meaning employers, there is no way to know how any employer will react when given the information that one of its employees has cancer. Some employers may react unpredictably or respond in a discriminatory or deceitful manner to secure what they perceive to be in their best interest. Moreover, while your client may have friends at work, with respect to their illness it is safest to assume anything told to coworkers will make its way to management, even if they have the best intentions. Therefore it’s best to advise your clients to refrain from revealing and discussing their illness with coworkers they are friendly with and whom they may otherwise rely on for support.

Under the best circumstances, not feeling well mentally or physically can make anyone irritable. Add cancer to the equation, and understandably a person undergoing treatment will become moody, overwhelmed, and short-tempered. As difficult as it may sound, this is precisely when your client must attempt to smile and maintain a pleasant demeanor, despite discomfort and pain. Sadly, relevant statutes make no exception or protection for irascible or disgruntled workers, if this behavior precludes the employee from performing his or her essential functions. For some cancer patients, the physical and/or mental demands are just too much. Fatigue and a cognitive phenomenon called “chemo brain,” where chemotherapy causes mental fogginess and memory problems, can cause errors on the job and a decline in performance. Such deficiencies speak to the essential functions of the job and could be a legitimate cause for the employee’s dismissal. In such cases, if permitted by the employer and if financially feasible, it may be best to recommend the employee take a leave of absence.

For patients with cancer who are in the unfortunate position of looking for work while being treated, they may be vulnerable to discriminatory hiring practices. In hiring, employers may legally ask only questions that speak to the essential functions of the job and they must ask the same questions to all applicants. The reality is that many employers, whether intentionally or not, ask questions that could be considered discriminatory under the ADA. Examples of such questions may include “do you take prescription medication” or “have you ever been injured on the job” for a position such as a librarian because they are not relevant to the job function of a librarian. On the other hand, if applicants have a visible disability (such as hair loss (See Patient’s Rights on page 15)

February 2013 / The New York County Lawyer 15



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Definition of Disability (Continued From Page 11)

(D) other similar services and actions.

Rehabilitation Act 501 3 The Rehabilitation Act of 1973 29 U.S.C. §§791 et seq. (1973) (B) Certain programs; limitations on major life activities

Subject to subparagraphs (C), (D), (E), and (F), the term “individual with a disability” means, for purposes of sections 701, 711, and 712 of this title and sub-

Ethics Hotline 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. February 1-14 Lew Tesser 212-754-9000 February 15-29 Anne Loranger 212-656-5263 March 1-15 Bruce Handler 212-508-9372 March 16-31 Sarah Jo Hamilton 845-412-5011 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 York County Lawyer.


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chapters II, IV, V, and VII of this chapter [29 U.S.C. §§ 760 et seq., 780 et seq., 790 et seq., and 796 et seq.], any person who has a disability as defined in section 12102 of Title 42.

NYS State Executive Law 292

N.Y. EXC. LAW § 292 : NY Code Section 292: Definitions

21. The term “disability” means (a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this

Patient’s Rights (Continued From Page 14)

from chemo) or have identified their disability during the interview process, the employer is permitted to ask how the applicant intends to perform the essential functions of the job, including what accommodations, if any, will be necessary.

Although certain questions may be illegal, the bottom line is that your client needs the job. It’s important to instruct your client to answer questions truthfully, but if possible to respond in a way that avoids disclosure of his or her illness. If necessary, they may decline to answer an uncomfortable question or on the other hand, they may feel compelled to state that they have cancer and may require an accommodation. If the client gets the job, then “no foul, no harm.” On the other hand,

Dignity Rights unmitigated horrors of the Second World War, rather than stemming from the natural evolution of rights in general. But none of this chills her enthusiasm for dignity as a dynamic new legal concept, value, and right, which she creatively extends and explores in all of its possible dimensions. (Continued From Page 7)

What the author does not appear to consider, as de Tocqueville undoubtedly would, are its potentially negative consequences. He would not only point to a possible “false bottom” to the box he mentions, the misuse of its application,

article dealing with employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.

NYC Administrative Code §8-102

§ 8-102 Definitions. When used in this chapter:

16. (a) The term “disability” means any physical, medical, mental or psychological impairment, or a history or record of such impairment. (b) The term “physical, medical, mental, or psychological impairment” means: (1) An impairment of any system of the body; including, but not limited to: the neurological system; the musculoskeleif the employer asks your client discriminatory questions then declines to extend a job offer, and the law infers that the employer uses discriminatory hiring practices and may be liable for damages under the ADA. Alternatively, if your client provides untruthful or misleading information on the application and is subsequently hired, such information can serve as an independent basis for termination notwithstanding the protections of the ADA and other applicable laws.

Cancer is never a pleasant experience, but with these few tips as a starting point, you may make your clients’ experience just a little smoother. Formulate a work/treatment schedule by maximizing all the possible time-off afforded through a combination of vacation, sick time, and unpaid leave under the FMLA, state and local laws, and the employer’s rules. Work together to plan a presentation for the employer regarding what

but perhaps even more important, the absence of a sturdy “top.” So ubiquitous, so elastic, so innately attractive is the word (Who can possibly be against human dignity?) that on the world stage it may represent the mere gloss of agreement to avoid the much harder tasks of meaningful negotiation and concrete action, and among nations unrealistic demands by their citizens for social and economic benefits based on assertions of individual self-determination and selfworth that could result, among other things, in dire financial results such as present day Greece, Spain, and Italy are now experiencing. And it could lead to downright dangerous conclusions when faced with stark reality. In an unfortunate

tal system; the special sense organs and respiratory organs, including, but not limited to, speech organs; the cardiovascular system; the reproductive system; the digestive and genito-urinary systems; the hemic and lymphatic systems; the immunological systems; the skin; and the endocrine system; or (2) A mental or psychological impairment. (c) In the case of alcoholism, drug addiction or other substance abuse, the term “disability” shall only apply to a person who (1) is recovering or has recovered and (2) currently is free of such abuse, and shall not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use. reasonable accommodations your client requires getting through this period. At best, you may help your clients avoid problems that can possibly cost them their jobs and help steer clear of all the complications associated with unemployment and loss of health insurance benefits.

Andrew Ricci, a NYCLA Health Law and Insurance Law Committee and Young Lawyers’ Section member, is currently a graduate legal fellow with the Cancer Advocacy and Elderlaw Projects at the City Bar Justice Center while he seeks permanent employment in health law, trusts & estates, or elder law. Previously a law clerk with Rosenberg & Estis, P.C. while he attended Fordham University School of Law, he graduated this past May and his applications are pending for admission to the Bar in New York and New Jersey.

bit of hyperbole and exhuberance in an otherwise sound and superbly written exercise, the author suggests that the “flipside” of the phrase “Never Again!” may very well be dignity. Here, she is flatly mistaken. The phrase has no flipside, only a possible footnote. It would read something like, “Go ahead, make my day!” And de Tocqueville would surely agree.

Frank Taddeo, Esq. is a member of NYCLA’s Law & Literature Committee. A specialist in IP law, he has authored a book of law for the layman and articles for a variety of journals, including the New York Times. He holds an advanced degree in European history.

16 February 2013 / The New York County Lawyer

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