2014 ABA Annual Meeting by Catherine Lomuscio

I was not able to attend this year’s Annual ABA Meeting taking place in Boston, Massachusetts due to a scheduling conflict.

However, I was able to obtain some interesting information regarding the House of Delegates meeting that took place on August 11th and 12th of this year, the culmination of the annual meeting.

The HOD is the association’s policy making body.  It is made of 560 members representing state and local bar associations.

During the two-day session, the HOD adopted policies relating to cybersecurity, domestic and sexual violence and LGBT rights.  One of the highlights of the meeting was the address given by Chief Justice John G. Roberts, Jr.  He discussed the influence of the Magna Carta on the rule of law in the world and kicking off the ABA’s celebration leading up to the great Charter’s 800th anniversary on June 15, 2015.  He urgently called on lawyers to advance the historic document’s ideal for the rule of law and particularly for independent courts.

The ABA’s outgoing President, James Silkenat (from NY), detailed a long list of accomplishments of the ABA in the past year.  These included his signature effort to fill unmet legal needs with work by new and underemployed lawyers to address the immigration crisis and to confront the continuing tragedy of school shootings.

The new ABA president, William C. Hubbard, accepted the gavel and quickly set about urging the House to follow the courage of those who pushed for the Magna Carta and those who crafted our Constitution.

In a ground breaking move, the ABA elected Paulette Brown as the first woman of color to become next year’s president of the association.  In her speech to the House of Delegates, the new president-elect urged adherence to the ABA’s motto “Defending Liberty, Pursuing Justice,” specifically calling for members to fight implicit bias, especially in the criminal justice system.

As one of the largest voluntary professional membership organizations in the world, and the national voice of the legal profession, the ABA is working very hard toward these goals and to improve the administration of justice generally.  I urge you to visit the ABA website and learn more about this valuable organization and the many benefits it offers its members.

Digital Cabs and Hotels – New York City on the Ropes? By Paul E. Kerson

New York City is a transportation hub and meeting place – perhaps the greatest in the world, certainly the largest in our country. From the far corners of the globe, people come to Kennedy Airport and take one of our thousands of yellow cabs to one of our hundreds of hotels.

Our yellow cabs, green cabs and black car services are closely regulated by the New York City Taxi and Limousine Commission (TLC). The TLC regulates every aspect of the cab and its driver – meters, equipment, ownership, insurance and driving offenses. Our hotels are regulated by the New York City Department of Buildings and the Fire Department. Every aspect is covered – fire extinguishers, fire exits, room size, and personnel.

Along comes digital world companies to upend years of carefully drawn rules and regulations that have built the world’s most successful city.

Is this a good thing?

New York City is not a computer game or a pinball machine. One takes a digital cab at one’s own peril. Any insurance there? Did the driver have any training? How about the condition of the cab? Did the TLC ever meet the digital driver or inspect the digital cab?

Is the digital cab taking you to a digital hotel room? What exactly were you planning to do if a fire broke out? Do you really think you’d find a fire extinguisher in a digital room or hallway? Were you planning to call the front desk? What front desk?

A modest proposal – digital cab companies should be required to register and be supervised by the TLC before being allowed to do business in New York City.  Digital room services should be required to have every room in their inventory inspected and passed by the Buildings Department and the Fire Department before being given permits to operate in New York City.

Digital cab and hotel companies must be required to meet the same exacting requirements as do their current competitors.

The City Council and State Legislature need to act on this before we see the next tabloid headline – “Foreign tourist taken for five borough ride in digital cab to drug dealer’s digital room and is arrested by mistake in drug raid”.

Our City has a seamier side. It is up to the City and State Governments to make sure our standing as the world’s best meeting place is not ruined by unregulated digital cowboys out to undermine what works.

Culture at the Courthouse by Joseph Carola III

Each day you enter the Supreme Court, you walk through the strong bronze doors featuring various law givers and up the grand marble staircase where you pass two portraits painted by Vincent Aderente. On the left staircase, the mural is titled “Mosaic Law.” The mural on the right side of the staircase is titled “Constitutional Law.”

Have you ever wondered who any of these figures represented? Thanks to The Smithsonian, wonder no more.

The figures on the bronze doors are: Hammurabi, Confucius, Moses, Manu, Gaius, Mohammed, Edward I and Grotius. (tip of the cap to Jeff Gottlieb)

CONSTITUTIONAL LAW

The Chief Justices of the Supreme Court are on the left side – Salmon P. Chase, Morrison Remick Waite, Roger Brooke Taney, Oliver Ellsworth, John Marshall, Melville Weston Fuller, John Jay, Edward Douglas White, William Howard Taft and Charles Evans Hughes. Our “Founding Fathers” are on the right side: George Washington, Thomas Jefferson, James Madison, George Clymer, James Wilson, Benjamin Rush, George Read, Alexander Hamilton, Benjamin Franklin, John Hancock and, because he was too antsy to sit still, Richard Henry Lee in profile.

MOSAIC LAW

This mural was described by Mr. Aderente as depicting: “In center of panel, Moses presents to his people the tablets on which are inscribed the ten commandments. Left foreground, a priest with prayer shawl. Back of him, the merchants and Aaron, brother of Moses, in the act of calling the tribes. Right, in foreground, the shepherd and the slave kneeling, to his right, the wealthy man with his family, above him, the holy man. In the background, the multitude coming over the mountains to hear Moses speak.”

Rethinking the Life Estate by Ann Margaret Carrozza

Life Estates were historically my “go-to” vehicle to help clients avoid both probate and long term care claims on the primary residence.  This is no longer the case.

Background – Since the late 1990s, when NYS enacted ‘Transfer on Death’ legislation for brokerage accounts, most of a decedent’s assets can now avoid going through probate at death.  That is, except for the primary residence.  The Life Estate was long utilized to avoid probate by naming beneficiaries of a house directly on the deed.

The life estate is created by transferring ownership of the house from “Mary Smith” to “Mary Smith, for life, Remainder Interest to Mary, Susie, and Johnny”.  In this arrangement, Mary owns the present and the kids own the future.  Upon the death of Mary Smith, the remainder beneficiaries own the property immediately.  The life estate also serves to protect the house against  long term care claims, provided that it was created prior to the applicable Medicaid “look-back” period.  This all sounds great, so why have I stopped using the life estate?

Because in ten out of ten situations, I find that a properly drafted trust will accomplish one’s planning goals more effectively.

Medicaid Look-Back – Prior to 2006, the so-called Medicaid look-back period for life estates was 3 years.  This gave it an advantage over a trust, the look-back for which was always 5 years.  Since 2006, however, the look-back period on everything is 5 years.  Therefore, the life estate no longer enjoys this advantage.

Sale of House During a Parent’s Life – Both the trust and the life estate allow for the sale of the property during the parent’s life.  The problem with selling the house in a life estate is two-fold:  The parent will receive a percentage of the sale proceeds outright.  The actuarial value of the life estate (determined by reference to the ‘life insurance tables’) is payable directly to the parent.  This leaves them with totally unprotected assets and the need to “start over” in terms of protecting this money.

If the parent is on Medicaid and in a nursing home at that point, the parent’s ‘life estate’ portion of the sale proceeds must be turned over to Medicaid.  As if this weren’t bad enough, selling a home in a life estate will also deprive the family of “mom’s” full $250,000 capital gains exclusion.  This is because she only owned a percentage of the house (“the now”) and therefore, isn’t entitled to the full exclusion.

By contrast, selling the house from within the trust, results in all of the sale proceeds being paid directly to the trust.  These monies can then remain protected within the trust and invested in any asset class, including a replacement residence for mom’s use.  The trust (if properly drawn) will also entitle the family to the full $250,000 capital gains exclusion).

Second Marriage Planning – The life estate is often employed to help clients balance the competing goals of protecting a surviving spouse against the desire to leave the primary residence to one’s adult children of the first marriage.  This life estate can be created in the will and reads as follows:  “I leave my house to Jane, for her life, and then to Mary, Susie, and Johnny as tenants in common.”

This arrangement has intuitive appeal, but is flawed in several respects.  Giving the surviving spouse lifetime ownership means just that.  During all of the days of “Jane’s” life, the children are unable to sell the house.  This is true, even if Jane has moved away or is in a nursing home.  A better result can be achieved by using a trust which gives Jane occupancy rights “until the earlier of her death, voluntary vacatur, stay in a nursing home, remarriage, or cohabitation with an unrelated person”.

Other Assets –  A life estate can only operate on real estate.  A trust, on the other hand, can own every type of asset (including cooperative apartment shares).  One typical elder law planning scenario is to transfer the home to a trust and leave the liquid assets in the parent’s name.  In the event of a long term care need, we can then transfer the liquid assets into the trust which already owns the house.

Is there a new 5 year look-back on these just-transferred assets?  Yes, but the look-back period for home care Medicaid is only one month.  Most people I know (including myself) would prefer to be at home in the event of a need for long term care.

The bottom line is that a properly drafted trust can offer all of the advantages (and more) of a life estate without the negatives.

Ann Margaret Carrozza is a practicing attorney who also served as a New York State Assemblywoman.   She is a regular legal contributor to TV and print media outlets.  She can be reached at 212.606.6811. www.myelderlawattorney.com

President’s Message by Joseph Carolla, III

Even though there’s a chill in the air, things have been jumping in and around Queens, so without further ado, here’s what you need to know:

New Protections for Referees in Foreclosure Cases

On September 23, 2014, and effective immediately, Governor Cuomo signed New York Assembly Bill 1582. The law prevents referees from being held liable for interest or penalties on transfer taxes to be paid on deeds filed in their capacity as referee pursuant to a judgment of foreclosure and sale.

Previously, pursuant to City Administrative Code 19 RCNY 23-08, referees in foreclosure proceedings could have been viable for interest and fees imposed by the City Department of Finance for the failure to timely file a Real Property Transfer Tax (RPTT) return following the sale of foreclosed property.

Pursuant to the new law, the Tax Law and New York City Administrative Code were amended as follows:

Tax Law ~~ 1422, 1437, 1438-p, 1439-p, 1439-pp, 1447-a, 1448-v, 1449-u, 1449-pp, 1449- ppp, 1449-pppp, and 1449-ppppp were amended to provide:

“Foreclosure Proceedings. Where the conveyance consists of a transfer of property made as a result of an order of the court in a foreclosure proceeding ordering the sale of such property, the Referee or Sheriff effectuating such transfer shall not be liable for any interest or penalties that are authorized pursuant to this article or article thirty-seven of this chapter.”

Tax Law ~1240 was amended to provide:
“Notwithstanding any other provision of law to the contrary, the authorization to impose tax upon the transfer of real property pursuant to subdivision (b) of section twelve hundred one of this article shall not, when the conveyance consists of a transfer of property made as a result of an order of the court in a foreclosure proceeding ordering the sale of such property, include the authorization to impose civil or criminal penalties, interest, or other liability upon the referee or sheriff effectuating the transfer.”

Section 11-2119 of the Administrative Code of the City of New York has been amended to provide:

“Foreclosure proceedings: Where the conveyance consists of a transfer of property made as a result of an order of the court in a foreclosure proceeding ordering the sale of such property, the referee or sheriff effectuating the transfer shall not be liable for any interest or penalties authorized by this chapter or chapter forty of this title.”

Practitioners may also wish to consider adding the following language to Judgments of Foreclosure and Sale submitted for signature: “The Referee shall not be held responsible for the payment of penalties or fees pursuant to this appointment. The purchaser shall hold the Referee harmless for any such penalties or fees assessed”.

Amendment of CPLR 3216

In the event that your county heard of and/or follows the CPLR, you may want to note this change to the dismissal for Want of Prosecution section. The changes dictate that when an action is taken for failure to prosecute, it must be with notice to all parties; made one year after the joinder of issue OR six months after the issuance of a Preliminary Conference Order.

House of Delegates Meeting November 1, 2014

At the meeting, there were two main topics discussed: Whether New York should adopt the Uniform Bar Exam (UBE) and Mandatory Reporting of Pro Bono services (Pro Bono).

UBE

By way of background, the UBE has been adopted by 14 jurisdictions (while it is only my personal opinion, a review of the states that have adopted the UBE reads like a Who’s Who of states that have people who want to get out of them and come to New York…Alabama, Alaska, Arizona, Colorado, Idaho, Minnesota, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Utah, Washington and Wyoming). The UBE is made up of a common set of six Multistate Essay Examination questions, two Multistate Performance Test tasks and the Multistate Bar Examination and the exam results would become a portable score. It would seem that only the score is portable, not the license to practice law in the participating states and applicants must still follow the rules for admission in those other jurisdictions.

On October 6, 2014, the Court of Appeals issued a Request for Comment with respect to a recommendation from the Board of Law Examiners to replace the current New York State bar examination for the administration of the July 2015 bar exam, with comments due no later than November 7, 2014.   At the House of Delegates meeting on November 1, 2014, Committee Co-Chairs Eileen D. Millett and Prof. Patricia E. Salkin of the Committee on Legal Education and Admission to the Bar presented a report regarding this issue.

The proposed change to the New York State Bar Exam would require all candidates to take the Uniform Bar Exam, (“UBE”) plus take and pass a separate New York law exam consisting of 50 New York-specific multiple choice questions given on the second day of the exam. It would also eliminate the five essay questions that test knowledge of New York-specific law in favor of the UBE essays.

Concerns over the rush to UBE proposal for July 2015 were voiced. Some of the concerns noted that there have been no New York state-specific studies about the impact of adoption of both the UBE and New York Law Exam on applicants, and the state bar recommends that the New York Board of Law Examiners should first conduct and publish a disparate impact analysis of both the UBE and the New York Law Exam for minority test takers. Also, there is concern over what impact the requirement of passage of both the UBE and a New York Law Test will have on test-takers. Moreover, the 50 multiple-choice questions on the revised New York portion of the exam have not been “pre-tested” to see how test takers would handle the new format; the sample questions have not yet been drafted nor made publicly available. Further, candidates for the July 2015 bar exam will be disadvantaged by not having the updated materials available well in advance of the examination, and many law students have expressed concern that they would be disadvantaged as they have already made curricular decisions and selected commercial bar review courses based on a belief that they will be taking the existing New York Bar Exam.

After these concerns were presented, the NYSBA found that a 30 day comment period was too short to enable all of the stakeholders a fair and reasonable time for study and discussion of all of the impacts associated with dramatic change to the composition of the bar exam in New York. The state bar also recommends that if the court system adopts the UBE or makes other major changes to the test, that changes be phased in with “fair advance and appropriate notice” to test takers; the state bar requests a two-year reprieve of the proposed change, effectively delaying a new exam until 2017. The NYSBA recommended that the court system delay the decision on adopting the UBE and authorized its President, Glen Lau-Kee to take whatever action is necessary to ensure that the revised bar exam does not take effect next summer.

On November 10, 2014, the Court of Appeals issued a release providing additional time for comment, until March 1, 2015.  The Uniform Bar Examination will not be administered in July 2015, and a committee will be appointed to study the issues surrounding the proposal.  The press release may be viewed online at www.nysba.org/UBEComments.

(Thanks to Marie-Eleana First for contributing to this article)

Pro Bono

On May 1, 2013, the Administrative Board of the New York State Unified Court system enacted section 118.1(e) (14) of the Rules of the Chief Administrator. This rule requires lawyers to report on their biennial registration forms: (a) the number of hours that the lawyer voluntarily spent providing unpaid legal services to the poor and underserved clients during the previous biennial registration period; and (b) the amount of voluntary financial contributions the lawyer made to organizations primarily or substantially engaged in providing legal services to the poor and

underserved during the previous biennial registration period. This rule was promulgated at the insistence and direction of Chief Judge Jonathan Lippman and without consultation with any Bar Association. The unilateral implementation of this rule by the CJ created a great deal of controversy and anger with his decision. It took over eighteen months, but due to the outcry of many lawyers, bar associations and the efforts of the NYSBA and its President Glen Lau-Kee, significant changes to the rule were negotiated and proposed.

In June, the House of Delegates met and decided to postpone a vote on a pending resolution to November 1, 2014 in order to give Lau-Kee more time to work on a solution. Since then, he and President-elect David P. Miranda have met four times with Chief Administrative Judge A. Gail Prudenti and Helaine M. Barnett who chairs the Task Force to Expand Access to Civil Legal Services in New York. In addition, Lau-Kee said he also had lunch twice with Judge Lippman to discuss the matter. During those meetings, there was an agreement that the information obtained from the biennial registration forms, should be confidential.

At the New York State Bar Association House of Delegates meeting on November 1, 2014, the members adopted a resolution asking the Office of Court Administration to keep information concerning the reporting of pro bono hours and financial contributions anonymous and the data obtained in the aggregate. Lau-Kee told the House that it is believed confidentiality could be accomplished by separating the submission of actual data from an attorney’s certificate of compliance. The thought being, attorneys would file a certification verifying compliance, but the data would be filed anonymously and independently. Additionally, expanding the narrow definition of pro bono to include other categories of contributions attorneys are making, which are not currently recognized.  The House also adopted an administrative resolution which amends its comments to conform with Rule 6.1 of the Rules of Professional Conduct, which increased the aspirational hours from 20 to 50 of pro bono service, which lawyers are strongly encouraged to perform annually.  However, a “ “friendly amendment” to the resolution, offered by Past President A. Thomas Levin, highlights that the change to the comment  is merely to conform to the rule, as adopted by the Appellate Divisions.

(Thanks to past president Richard Gutierrez for contributing to this article)

Appearing Before the Court in Queens County: Views from the Bench and The Bar

On Wednesday, November 5, 2014, the QCBA presented the above CLE. The premise was to learn from the Judges on the panel how to be a more effective advocate and achieve better results and to learn from successful attorneys the procedures to follow and their strategies for success. The CLE was sponsored by The Judicial Relations Committee, FindLaw and Signature Bank. The seminar was the brainchild of Steven Miller, Esq., and Steven Orlow, Esq. I would like to thank the Steves and particularly Mr. Miller for lining up the speakers and ensuring that this event was a success.

The panelists included Administrative Judge, Hon. Jeremy Weinstein, Hon. Kevin J. Kerrigan, Hon. Frederick D.R. Sampson and Hon. Martin E. Ritholtz from The Bench. The Bar panelists were Alan C. Kestenbaum, Esq., George E. Nicholas, Esq., James R. Pieret, Esq., and Peter S. Thomas, Esq. The main themes of the seminar were the concepts of preparedness but, more importantly, civility and respect.

It was great seeing so many new faces at the seminar and I think everyone involved agrees that the exchanges and presentations were congenial, civil and showed Queens County at our best. Thanks to all involved.

Social Media Marketing Webinar for Lawyers

This Webinar is cancelled due to insufficient attendance.

Join us on Wednesday, Nov. 19 from 8:00 p.m. – 9:00 p.m. for an insightful Webinar into the world of social media through LinkedIn, Facebook, Twitter, Google Plus and YouTube.

Speaker Catherine M. Zito, President and CEO of Image Is It (National Marketing Company) and Social Media expert will share current topics on how you can…

  • Build or create a social profile
  • Reach a new target audience
  • Improve your online communication and branding
  • Drive traffic back to your website and increase business
  • Ethics and compliance rules

Members: $40.00
Non Members: $50.00

View the course from your computer, tablet or on the go with your smartphone. We’ll also have a call in number for listening only. This is an informational based course and not a CLE course. Attendees will not receive CLE credits.

To make your reservation email CatherineZito@imageisit.net. You will receive registration and login access prior to the course through email confirmation.

CLARO Queens Celebrates Sixth Anniversary by Charlie Giudice, Staff Attorney, Queens Volunteer Lawyers Project, Inc.


On January 25, 2008, the first session of Queens’ Civil Legal Advice and Resource Office (CLARO) was held in Queens County Civil Court. Six years and more than 300 sessions later, Queens CLARO has provided more than 6,000 free legal consultations to approximately 4,000 unrepresented defendants in consumer credit collection lawsuits. More than 150 lawyers have volunteered at Queens CLARO advising people who lack the resources to hire private counsel.

“Simply by coming to CLARO and receiving free legal advice, pro se defendants significantly improve their chances of a positive outcome in court,” said Mark Weliky*, executive director of the Queens Volunteer Lawyers Project (QVLP), which co-founded and continues to administer Queens CLARO. “Many of our CLARO visitors are able to negotiate settlements for thousands less than the amounts demanded. Sometimes, the cases may even be dismissed or discontinued.”

“What makes CLARO a success,” said April A. Newbauer*, “is the collaborative relationship between law schools who provide student interns to assist at CLARO sessions, legal service providers, bar associations, attorney volunteers and the courts.”

Newbauer previously served as Attorney-in-Charge of the Queens Neighborhood Office of the Legal Aid Society and Chair of the New York City Bar Association’s Civil Court Committee. She played a key role in establishing the pilot CLARO project in Brooklyn
and expanding to Queens County.

“By having everyone pitch in and collaborate, we were able to put together a program that has assisted so many unrepresented litigants,” said Newbauer, now a Court of Claims Judge who sits in the Supreme Court, Bronx County.

“One attractive feature for volunteer attorneys is the limited-scope nature of the service,” Newbauer said. “Attorney volunteers need only agree to provide service within the hours of the clinic. They do not have to represent clinic visitors in their court cases. Supervision and support are available to volunteers on-site.”

One typical CLARO visitor was Mr. T. (name changed to protect confidentiality). When he arrived at CLARO, he had a trial date scheduled, but had just received papers in the mail from the debt-buyer Plaintiff. He was looking for help to understand what the papers meant.

The papers turned out to be a summary judgment motion from Plaintiff, returnable before the trial date. A CLARO volunteer explained to Mr. T. that his papers required him to come to court before his scheduled trial date. The volunteer attorney also discussed several affirmative defenses with Mr. T. QVLP staff assisted Mr. T. by preparing an affidavit in opposition to Plaintiff’s motion. Mr. T. appeared for his motion date and submitted the opposition to the judge. Plaintiff’s motion was denied, and, at trial, based on the affirmative defenses identified at CLARO, the case was dismissed.

While CLARO has been successful in assisting its visitors and providing greater access to justice, the debt collection industry, with its prolific filings in the courts of New York State has remained rife with issues.

In his 2014 Law Day remarks on April 30, New York State Court of Appeals Chief Judge Jonathan Lippman* highlighted reoccurring issues in consumer debt collection cases that tip the scales unfairly against uncounseled debtors. Among the most reprehensible practices identified by the Chief Judge, was that of creditors obtaining default judgments by filing hearsay affidavits filled with boilerplate language so lacking in specificity that a layperson could not tell whether he or she was actually responsible for the underlying debt. Use of such boilerplate affidavits is known as ‘robosigning,’ a practice in which mass-produced affidavits are signed in bulk by individuals lacking knowledge of the information contained in the affidavits. Many times the affiant has not written or even read the affidavit. This practice has flourished because many debt collection lawsuits are filed by third parties on debts that are several years old and may have been sold several times.

“By the time these so-called ‘zombie’ debts show up in court, it is extremely difficult for debtors – 98% of whom are unrepresented – to assess the validity of the claims against them,” Lippman said. “In fact,” Lippman went on to say, “many debtors first realize that they have been sued when they find their bank accounts frozen or their wages garnished.”

Many of the issues highlighted by Lippman in his remarks – missing documentation, defendants never being served, the high rate of defaults and even judgments being issued against incorrect parties – have been prevalent for years. A 2007 report by the Urban Justice Center found that 80% of collection cases filed in New York City Civil Courts resulted in default judgments. Approximately 320,000 collection cases were filed in the New York City Civil courts in 2006 alone, according to the report. That number exceeded the number of federal civil and criminal cases filed nationwide that year.

The vast majority of the small number of defendants who did appear were unrepresented. “These numbers are relatively unchanged today,” Judge Lippman said. He also said that, “‘sewer service’ – in which fraudulent affidavits of service are filed with the court when the defendant was never actually served – remains a problem even after crackdowns by the courts and licensing agencies.” According to the Chief Judge, “significantly more than half of these cases filed across the state result in default judgments.”

CLARO owes its existence to this explosion of consumer collection lawsuits. The problem first became apparent around 2005,” Newbauer said.

“In addition to our existing work at Legal Aid, we were seeing consumers coming in with judgments; people with fixed incomes with wages garnished and bank accounts frozen,” Newbauer said.

Dora Galacatos, director of the Feerick Center for Social Justice at Fordham Law School, which administers CLARO in Manhattan, the Bronx and Staten Island, agreed. “Default rates citywide were astronomical,” she said.

Resources to address this need were scarce. Newbauer said that at the time, “Legal Aid had ‘half of a full-time attorney’ to address this expanding area of need. We really had to borrow people’s time to work in the neediest areas.”

“What was needed,” Newbauer said, “was a citywide approach emphasizing collaboration among legal service providers, law schools and the courts.”

“We needed cooperation and we got it,” Newbauer said, emphasizing the roles played by Judge Fern A.
Fisher, the deputy chief administrative judge for New York City Courts; Judge Bernice D. Siegal, then the supervising judge of Queens Civil Court, now a justice of the Queens Supreme Court; the law schools; The Legal Aid Society and the Volunteer Lawyers Project. “It ended up being a good thing for everyone, including the court.”

Today, there are CLARO clinics in all five boroughs of New York City, as well as in Westchester and Erie counties. The program may expand to other counties in the future. Judge Lippman in his Law Day remarks specifically mentioned CLARO as an “excellent” program that can be used as a resource to increase legal assistance.

Visitors to CLARO, meet with staff and volunteer attorneys, assisted by law student interns, to receive advice regarding their cases. The attorneys can assist with vacating default judgments, filing answers, and responding to motions and discovery requests from creditors.

CLARO does not represent visitors in their court appearances. Visitors may be eligible to referrals to other free legal service providers for additional services. CLARO clinics refer visitors to other free legal service providers as appropriate.

Over time, the assistance provided at Queens CLARO has expanded. “At first,” Weliky said, “volunteer attorneys would assist visitors mainly with answers and advice. When debt collecting plaintiffs began making lengthy discovery demands and motions for summary judgment before the next scheduled court date, Queens CLARO adapted by assisting pro se litigants to respond to the discovery demands, including objection to improper questions, and to oppose summary judgment motions.”

Queens CLARO is held every Friday that court is in session at 1:30 p.m. in room 116 of Queens Civil Court.

“Visitors to Queens CLARO who have achieved successful outcomes in their cases are too numerous to mention,” Weliky said. “CLARO volunteer lawyers have uncovered fraudulent affidavits of service, incorrect account numbers, instances of mistaken identity and material misstatements of facts in plaintiffs’ papers. This bit of knowledge can make all the difference to an unrepresented defendant.”

“Defendants who know what the Plaintiff needs to prove fare better in court,” Weliky said.

Book Review: Business and Commercial Litigation in Federal Courts by Paul E. Kerson

Once again, Robert L. Haig has done a masterful job in creating the Third Edition of Business and Commercial Litigation in Federal Courts (2011, with 2013-2014 pocket parts).  There is also a CD-Rom edition.  All are published by the Section of Litigation of the American Bar Association in conjunction with West – a Thomson Reuters business.  All of the royalties from this publication go to the ABA Section of Litigation.  In his introduction, Bob Haig tells us that the royalties have been “substantial”.

Going through these 12 volumes shows what a terrific job Bob Haig has done.  There are no less than 251 principal authors, all prominent practitioners, judges, or scholars.  Bob estimates that more than 60 million hours of billable time has been spent in creating this comprehensive work.

Actually, the title is a misnomer.  This first class legal treatise concerns far more than commercial litigation.  It also concerns every other topic of law that commercial litigation may touch upon, including but not limited to civil procedure, criminal law, torts, ethics, administrative law, contracts, insurance, admiralty and maritime law, immigration, pensions, and tax.

By far the most interesting and important sections of this treatise are the last two chapters, Chapter 129 concerning E-Commerce and Chapter 130 concerning Information Technology.

These are topics that are new to the legal system.  However, in the highly computerized age in which we live, these are brand new topics which every lawyer must become familiar with.

The E-Commerce chapter was written by Prof. Herbert F. Schwartz, an adjunct professor of law at the University of Pennsylvania Law School and the New York University Law School.  He is a retired partner of the law firm of Ropes & Gray, LLP.  The co-author of the E-Commerce chapter is James P. Canfield, Esq. a specialist in patent litigation.  He is Of Counsel to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP.  E-Commerce turns out to include television, radio and credit cards as well as more sophisticated recent applications, including Mapster, Aimster and Grokster.  Interestingly, Mapster, Aimster and Grokster each have their own sub-chapter.  In an age of Google, Facebook, and Twitter, E-Commerce turns out to be an area of the law where the most growth will take place.  Prof. Schwartz and Mr. Canfield conclude:
“At their heart, most (but not all) federal court disputes about eCommerce are about the extent to which federal law limits one’s ability to use another’s creation.”  (Volume 11, Page 1031).

Another important chapter for the future of our profession is Chapter 130, “Information Technology” by Wayne C. Matus, a lawyer with more than 30 years of experience in Information Technology Law.  As our world becomes more and more dependent on the computer, this chapter will become more and more important in everyone’s law practice.

However, not surprisingly, even this most complicated subject comes back to the very beginning of law school, locating the original written agreement that covers the information technology dispute.  Mr. Matus states the basic principle as follows:
“A primary step in evaluating an IT dispute is assembling the written agreements governing the underlying transaction.  Such transactions – in particular those involving outsourcing are typically heavily documented in multiple, often extensively negotiated agreements, generally under a Master Services Agreement (MSA).”  Volume 11, Page 1075.

A very important chapter for the future of our profession is Chapter 25, “Discovery of Electronically Stored Information” by Judge Shira A. Scheindlin of the U.S. District Court in Manhattan, and Jonathan M. Redgrave, Esq. a Washington, DC expert in electronic discovery.  Given that almost all records of any type are now stored electronically, Chapter 25 is going to wind up as required reading for all lawyers.

Judge Scheindlin and Mr. Redgrave sum up the problem in their chapter:

“It is axiomatic that a potential or actual party to litigation has a duty to preserve documents and things relevant to claims and defenses in the litigation.  The duty to preserve clearly attaches to relevant electronically stored information.  Fulfilling that duty, however, presents special challenges to business organizations seeking to preserve electronic information because destruction of such information can occur through the normal operations of its computer systems.”  Chapter 25, Pages 359-360.

Globalization of trade has blurred national boundaries such that much of the business of our state and federal courts is now the subject of international arbitration pursuant to contractual agreements.
As the years roll on, more and more disputes will be the subject of international arbitration instead of state and local litigation.  We are fortunate that Bob Haig persuaded Judge Paul A. Crotty of the U.S. District Court in Manhattan, and Robert E. Crotty of Bob’s law firm of Kelley, Drye & Warren, LLP to draft Chapter 48, “International Arbitration.”

It turns out that the world’s new court system consists of the following preferred arbitration forums: The International Chamber of Commerce (ICC), the American Arbitration Association’s International Centre for Dispute Resolution (ICDR), and the London Court of International Arbitration (LCIA).

Judge Crotty and Mr. Crotty point out that “International arbitration is now used more and more frequently for resolution of commercial disputes between parties from different countries.  Moreover, the types of disputes referred to international arbitration have more at issue monetarily and are factually and legally more complex.”

In short, Bob Haig’s masterful 12 volume work tells us where we have been, where we are, and most importantly where we are going: E-Commerce (Chapter 129), Information Technology (Chapter 130), Discovery of Electronically Stored Information (Chapter 25), and International Arbitration (Chapter 48).

Bob Haig deserves our profound thanks for assembling this 12 volume work, which should be required reading in every law school, law office, and courthouse.

Estates Update 2014 by David N. Adler

The year in trusts and estates was highlighted by the imposition of new New York State estate tax rules, notably with respect to increased threshold for many resident decedents, coupled with a series of procedural laws primarily expanding the options for fiduciaries in trust and accounting scenarios.

HISTORY

As was noted last year in this column, the federal estate tax rules were solidified at a lifetime maximum exemption amount of $5,000,000 and indexed for inflation (this year – $5,340,000). Further, the concept of portability was also preserved, consisting of the fact that any unused portion of a spouse’s exemption amount, may be utilized by the surviving spouse. In the event that portability is elected on the decedent’s federal estate tax return, up to $10,680,000 could now be passed federally estate tax free by the second spouse to die.

This contrasted heavily with the New York State exemption equivalent of $1,000,000 which had remained static for many years. As such, only the first $1,000,000 operated as an exclusion from New York State estate taxes, over 4,000,000 less than the federal exclusion amount.

NEW YORK ESTATE TAXATION

Effective April 1, 2014, the Governor, in his 2014-2015 budget legislation, made significant changes to New York’s estate tax laws. As this constituted an anticipated, and mid- year immediate change, this Update Article would not have been timely if delivered to the Bar after the first of the year, as was normal custom. Kindly accept the timing of this Article, as an attempt to include important mid-year developments as part of the overall summary of relevant legislation.

Essentially the basic New York exclusion amount (amount exempt from tax) is being gradually increased over a five year period to equal the federal exemption amount. Specifically, from April 1, 2014 to March 31, 2015 the exclusion is $2,062,500; from April 1, 2015 to March 31, 2016 it is $3,125,000; from April 1, 2016 to March 31, 2017, it is $4,187,500; from April 1, 2017 to March 31, 2018 it is $5,250,000. From January 1, 2019 forward, the New York State exclusion is scheduled to be equal to the federal exclusion (approximately $6,000,000) amount.

DETERMINATION OF TAX

One of the purported goals of this legislation was to prevent high net worth individuals from leaving New York State for more tax friendly domiciles. Yet, due to the mechanics of computation of the new New York State exclusion amount, it does not offer the same benefits to those whose estates exceed the state exclusion amount.

Essentially for estates at or beneath the present New York exclusion amount, an applicable credit offsets the computed tax, resulting in a true exemption from New York estate taxes. Yet once the exclusion amount in that year is exceeded (ie. this year-greater than $2,062,500); the credit is adjusted and decreased as the size of the taxable estate increases. The new law contains credit computations for estates within 105% of the exclusion amount, and for those exceeding 105% the exclusion amount.

For estates within 105% of that year’s exclusion amount, a reduced credit is available against the tax, thereby creating a somewhat better tax scenario than existed before the legislation, yet taxability remains.

For estates greater than 105% of that year’s exclusion amount, no credit whatsoever is allowed, essentially voiding any state tax benefit for larger estates. As such, the entire estate is subject to New York estate taxation.

These two larger estate scenarios seem to fly in the face of the purported primary goal of the legislation; the tax benefits decrease, as the estates increase past the new thresholds for exclusion. Further, the federal concept of portability does not apply to New York State. For planners, allocation of assets between spouses to offset the loss of one’s state exclusion amount remains a consideration, in conjunction with utilization of a by pass trust (credit shelter trust), to formally preserve each individual’s exclusion amount.

QDOT

Qualified Domestic Trusts permit the federal marital deduction to apply to a transfer to a NON-US Citizen surviving spouse. Traditionally in order to qualify for this deduction, a federal estate tax return was required to be filed, even if the taxable estate was less than the federal threshold. Now, if no federal return is required to be filed (ie. the taxable estate is less than 5,370,000) there is no requirement to transfer funds to a NON-US Citizen spouse in a Qualified Domestic Trust – they may be transferred outright if said transfers would, in fact, qualify for the estate tax marital deduction on their own.

DECANTING

In 2011, significant revisions were made to the New York State decanting statute (EPTL 10-6.6). Decanting is a mechanism whereby a trustee who had authority/discretion to invade the principal of a trust may utilize said principal in creation of a new trust.

This legislation was discussed at greater length in this column at the time of its inception. Certain technical clarifications were made over the past year to that statute, significantly broadening fiduciary power. For example, a trustee with unlimited discretion to invade trust principal could decant to a new trust excluding all successor or remainder beneficiaries of the original trust. The interest of a discretionary income beneficiary of the original trust may be continued in the new trust. Finally, the decision to decant requires a majority determination of trustees so acting, not a unanimous one.

ACCOUNT OF FIDUCIARIES

Prior law provided that a resigning fiduciary must formally settle his account judicially (SCPA§715,716). The new law permits the Court to approve an informal settlement of the resigning fiduciary’s account, while preserving the Court’s ability to compel a judicial accounting.  Thus the option for an easier, less formal transition between fiduciaries now exists.

QUEENS COUNTY

Our seminar last year focused exclusively on primary and intermediate level estate planning. It included an analysis of the new federal estate tax law, along with the application and benefits of Credit Shelter Trusts, Qualifying Terminable Interest Trusts and Grantor Retained Annuity Trusts in light of the new law. We thank moderator and Surrogate Peter J. Kelly, and speakers John McFaul and David Schoenhaar for excellent presentations. It is anticipated that our fall seminar shall address fiduciary responsibility in a variety of proceedings. I trust you all had an enjoyable summer.

Books At The Bar by Howard L. Wieder

With origins dating back to 1478, Oxford University Press (“OUP”) is the world’s largest university press with the widest global presence. OUP’s Global Academic Publishing program spans the entire academic and higher education spectrum, including a wide array of scholarly and general interest books, journals, and online products.  OUP has published a multitude of award-winning books, including 15 Pulitzer Prize winners.  OUP has the highest standards for academic and professional works.

A review of www.oup.com will review numerous titles that are of great interest to the practicing lawyer.  I have chosen seven titles that are of interest to lawyers and litigators, five of them in the newly emerging field of international commercial arbitration.  The field of international commercial arbitration especially rose to prominence with the publication in 2012 of S.I. Strong’s “INTERNATIONAL COMMERCIAL ARBITRATION:  A GUIDE FOR U.S. JUDGES,” a 152-page handbook that is available online at www.fjc.gov.  I invite you to stroll through the OUP web site at oup.com for many titles in your particular field.  Here are my favorites chosen for this Spring-Summer 2014 column:

THE NEW YORK RULES OF PROFESSIONAL CONDUCT WINTER 2012
RULES, COMMENTARY, AND PRACTICE AIDS
Edited by New York County Lawyers’ Association Ethics Institute
New York Rules of Professional Conduct
$225.00
Hardcover
23 November 2012
1552 Pages
7 x 10 inches
ISBN: 9780199855711

    Increasingly, courts are citing and relying on the new New York Rules of Professional Conduct.  They took effect in April, 2009 and have binding force.  They are not precatory.  So whether your opponent is guilty of misleading a tribunal or is involved in an impermissible conflict of interest in representation, this book is the Bible in the field. The Fall 2012 edition includes the latest NYSBA Commentary and Ethics Opinions, including the effect of social media on today’s law practice, permissible legal marketing services, legal fees, contingency fees, and feesplitting arrangements, and maintaining client confidentiality.

Highlights:

Authoritative commentary provides much needed clarity on the transition to the Rules of Professional Conduct which govern attorney conduct in the State of New York

Cases and opinions have been fully updated to reflect the adoption of the Rules of Professional Conduct

Where portions of the prior Code are retained in the new Rules of Professional Conduct, Dean Mary Daly’s commentary to the Code is retained for historical reference

Commentary and practice notes address issues specific to specialty practice areas

Finding aids, including a cumulative index, table of rules, table of cases, and tabs have been added for ease of use and accessibility

THE NEW YORK STATE CONSTITUTION, SECOND EDITION
Peter J. Galie and Christopher Bopst
Oxford Commentaries on the State Constitutions of the US
$150.00
Hardcover
01 June 2012
446 Pages
61/8 x 91/4 inches
ISBN: 9780199860562
Also Available As:  Ebook

Highlights:

Includes an account of New York’s constitutional evolution, allowing readers to see the progression of legislation in its historical context

Provides a provisionbyprovision commentary of the state constitution of New York and includes analysis on the state’s current constitution, providing an essential reference guide to understanding this important document

Extensive topical and historical bibliography, including online sources, enables readers to easily find source materials and documents

The only book to provide the history and uptodate commentary on every aspect of New York State’s constitution

New to this Edition:

Includes constitutional amendments adopted since the publication of the first edition in 2011.

Provides an accurate analysis of recent court decisions that have altered or expanded the meaning of the New York State constitution

DAMAGES IN INTERNATIONAL ARBITRATION UNDER COMPLEX LONGTERM CONTRACTS
Herfried Wöss, Adriana San Román Rivera, Pablo Spiller, and Santiago Dellepiane
$260.00
Hardcover
392 Pages
9.7 x 6.7 inches
ISBN: 9780199680672

Highlights:

The first detailed coverage of legal, financial, and economic implications of damages in international arbitration.

Clarifies how different rules of law on damages and loss of income (UK, US, France, Mexico, Germany, CISG, and UNIDROIT Principles) are applied to damages claims for breach of complex longterm contracts including privatelyfinanced infrastructure projects and publicprivate partnerships.

Uses a stepbystep approach for the application of the butfor method and its relationship to loss, causation, and the measure of damages.

Refers to best international and national practices for the reconstruction of the hypothetical course of events to solve the legal, financial, and economic issues involved in the determination and quantification of damages claims and the proper reasoning of arbitral awards.

Makes extended reference to high profile ICC, UNCITRAL, and ICSID cases and unpublished awards in which the authors were involved.

PRINCIPLES OF INTERNATIONAL INVESTMENT LAW
Second Edition
Rudolf Dolzer and Christoph Schreuer
$68.00
Paperback
19 December 2012
530 Pages
9.2 x 6.1 inches
ISBN: 9780199651801
Also Available As:  Hardcover or Ebook

Highlights:

Provides a unique overview of the principles shaping the international law of foreign investment, as they have been defined in investment treaties and by the jurisprudence of international tribunals.

Analyses the dispute settlement mechanisms at work in State v. State and Investor v. State Arbitration.

Leading introductory text for students on international investment law courses, or for practitioners new to the area.

Fully revised and updated to trace the evolution of the jurisprudence and doctrinal opinion since 2008, with added coverage of the BITs of EU Member States

INTERNATIONAL COMMERCIAL ARBITRATION IN NEW YORK
Edited by James H. Carter and John Fellas
$75.00
Paperback
27 September 2013
770 Pages
7 x 10 inches
ISBN: 9780199938612

Highlights:

The editors are two wellrespected arbitration experts, who have gathered together the authorities in the field to address the most important topics for a lawyer involved in commercial arbitration in New York

The first comprehensive, uptodate source of vital information for commercial arbitration practitioners in New York, merging discussion of international commercial arbitration with the specific intricacies of the New York arbitral process and courts

Provides arbitrators with the necessary information and expert advice to help effectively pursue a case, being especially helpful to newcomers looking for an exclusive, insider look at the arbitral landscape of New York

CHOICE OF VENUE IN INTERNATIONAL ARBITRATION
Edited by Michael Ostrove, Claudia Salomon, and Bette Shifman
$280.00
Hardcover
09 March 2014
576 Pages
9.7 x 6.7 inches
ISBN: 9780199655717

Highlights:

The first book to provide indepth coverage of strategic considerations in choosing the seat of an arbitration

Comparative analysis of twenty venues, allowing evaluation of every major global seat

Written by a team of expert contributors with a wealth of experience in their regions

CLASS, MASS, AND COLLECTIVE ARBITRATION IN NATIONAL AND INTERNATIONAL LAW
S.I. Strong
$185.00
Hardcover
22 October 2013
432 Pages
61/8 x 91/4 inches
ISBN: 9780199772520

Highlights:

This is the first book to deal comprehensively with class, mass, and collective arbitration in a comparative context (or with any of these procedures individually).

Offers a detailed comparison of the different types of specialized rules on largescale arbitration, including some that have not yet been discussed in legal literature.

Discusses how largescale arbitration is likely to develop in new jurisdictions, either as an ad hoc mechanism or under nonspecialized arbitral rules.

Provides numerous new authorities including cases and statutes that have not previously been discussed in legal literature

HOWARD L. WIEDER, the writer of both the “Culture Corner” and “Books at the Bar” columns, is a Principal Court Attorney in State Supreme Court, in Queens County, New York.