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June 2006
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Excellent Paper Regarding Problems With the Proposed Changes to NY Lawyer Advertising Rules

The Sienko Law Office Blog recently linked to this in depth and well researched commentary on the proposed changes to the lawyer advertising rules in New York.  I highly recommend that you take the time to read it.

It was prepared by Attorney Joshua Stein and was submitted to the New York State Office of Court Administration (NYSOCA).  As I'd mentioned in my prior posts on this issue, comments regarding the proposed rules are being accepted by the NYSOCA.  Should you wish to submit comments regarding the proposed rules, here's the relevant contact information, which can also be found here at the New York State Court System's website:

Michael Colodner, Esq.
Office of Court Administration
25 Beaver Street
New York, New York 10004

The Monday NY Blawg Round Up

It's time for the Monday New York blawg round up of interesting posts from the last week.  And, without futher ado, here it is:

Long Island (Criminal) Trial Law Blog:

Second Circuit Sentencing Blog

The Sienko Law Office Blog

Comedic Break

I have no doubt that the following actually occurred.  Clients say the strangest things on the stand:

Lawyer questioning his client on the witness stand...

Plaintiff's Lawyer: What doctor treated you for the injuries you sustained while at work?

Plaintiff: Dr. J.

Plaintiff's Lawyer: And what kind of physician is Dr. J?

Plaintiff: Well, I'm not sure, but I remember that you said he was a good plaintiff's doctor.

Is Mortgage Foreclosure Referee an Independent Contractor?

In Matter of O'Brien v. Spitzer, 2006 NY Slip Op 05158, the New York Court of Appeals considered the issue of whether a private attorney appointed as a referee in a mortgage foreclosure proceeding was entitled to defense and indemnification from the State in a lawsuit brought against him.

Attorney O'Brien relied upon Public Officer's Law s. 17 as the basis for his claim that the State was required to defend and indemnify him.   From the decision:

Public Officers Law § 17 (2) (a) requires the State to "provide for the defense" of an "employee" in an action arising out of his or her public duties. "Employee" is defined in Public Officers Law § 17 (1) (a), which provides in relevant part:    

"As used in this section, unless the context otherwise requires the term employee shall mean any person holding a position by election, appointment or employment in the service of the state . . ., but shall not include an independent contractor . . . ."

The Court noted that the main issue to be determined was "whether petitioner was an 'employee' or an 'independent contractor' within the meaning of this section.

The Court of Appeals concluded that it was obligated to give deference to the Attorney General's resolution of the issue and thus held that it agreed with the Attorney General conclusion that O'Brien was an independent contractor:

Here, there was ample basis for the Attorney General's determination...Petitioner worked without day-to-day supervision and chose his own hours of work; it was he who selected the date for the foreclosure sale. He performed his duties on a part-time basis, while also working for clients of his private law practice. His compensation did not come from State funds, but from the sale proceeds. The State did not withhold income tax or provide workers' compensation. Petitioner furnished whatever materials he needed for his work, and paid his own expenses, subject to reimbursement from the sale proceeds. He deposited the proceeds in a special bank account bearing his own name, as required by CPLR 2609. He was, in short, substantially more independent from State control over his activities than a typical State employee. Beyond this, public policy supports the Attorney General's decision: The purpose of Public Officers Law § 17 is, in essence, to provide insurance against litigation. Private lawyers like petitioner ordinarily have malpractice coverage, and the Legislature is unlikely to have intended to substitute the State for lawyers' malpractice carriers.

Public policy rears its ugly head once again!  And, quite coincidentally, it supports the Court's holding.  Imagine that!

New Amendments to the Uniform Civil Rules in New York

According to this New York Law Journal article, the New York Uniform Civil Rules will be amended, effective October 1, 2006, including rule 202.8, which was only just recently amended as I'd posted about previously.  (Hat tip:  New York Attorney Malpractice Blog).  Apparently, allowing lawyers to badger judges about their failure to hand down timely decisions on pending motions wasn't quite working out.

The new amendments will affect a number of areas of practice, including the ways in which depositions are handled, the ways in which pre-trial conferences are managed, and motion practice.  The NYLJ article indicates that some of the new rules are intended to curb lawyer abuses during depositions, in addition to allowing judges to require that representatives of insurance companies participate in settlement conferences.  Another rule change bars an attorney from seeking ex parte relief unless there is a showing of significant prejudice.

From the article, regarding the new rules for depositions:

The deposition standard seeks to bar attorneys from coaching witnesses by making lengthy "speaking objections" in which they suggest an answer to an adversary's question. They also limit situations in which attorneys may stop a deposition and instruct the witness not to answer a question...

Under the rules, lawyers will be barred from making objections solely on the grounds of relevance, hearsay or competence. Lawyers will be permitted to instruct witnesses not to answer when the questions delve into an area of privilege; stray into an area barred by prior court order; or raise a question that "is plainly improper" and would cause "significant prejudice."

To deter the cessation of questioning on what Zauderer called a "frivolous basis," attorneys will be required to instruct witnesses to remain silent to provide "clear and succinct" statements on the record of the reason the instruction is being given.

Attorneys will only be permitted to interrupt a deposition when the questioning veers into one of the prohibited areas. And as is the case when instructing a witness not to answer, a new requirement specifies that, before interrupting a deposition, an attorney will have to "clearly and succinctly" state the reason for intervening.

From the article, regarding the new rules for settlement conferences:

Empowering judges to order insurance company representatives to participate in settlement conferences is an effort to stop insurers from waiting until jury selection is completed before they come forward with their best offer, said Zauderer...

Some insurance companies, he said, have publicly embraced a policy of announcing early in a case "a best and last offer" and sticking with it through trial if the offer is not accepted. But other insurers, even when they voluntarily send a representative to court, will not send someone with authority to offer a high enough figure to settle a case until after the jury is selected, added McDonough, a partner at Cozen O'Connor...

The rules will empower judges to compel the participation of parties and others who have an interest in the outcome of litigation, such as the holders of liens on an award. Judges are given the option of allowing participation over the telephone.

From the article, regarding ex parte relief:

The rule barring a party from seeking ex parte relief absent a showing of "significant prejudice" is designed to bring New York practice in line with that of the federal courts and many other states, said Zauderer. The state's practice of allowing attorneys to routinely request restraining orders without notifying their adversaries has been "rife with abuses," he said.

Under the rule, judges will be barred from granting restraining orders unless a party demonstrates a significant reason why an adversary must be kept in the dark. For instance, Carpinello said that an ex parte order would be justified where a request is being made to restrain funds and there is a likelihood that notice of the application would lead an adversary to secrete the funds before an order could be obtained.

Similarly, an ex parte order would be appropriate where a party is seeking to restrain the demolition of a building and notice would likely lead to the destruction of the building, said Carpinello.

A new procedure will be established for situations where a party cannot justify obtaining an ex parte order. Instead of proceeding ex parte, lawyers will, at a minimum, advise their adversaries of the time and place they will be asking for a restraining order. The rule does not specify how much advance notice will be required but says it must be "sufficient" to allow opposition.

The only rule change that is currently available at the New York Court's web site is the order amending Rule 202.8.

The additional amendments can be found here.

Define That Term #128

The most recent term was legatee, which is defined as:

n. a person or organization receiving a gift of an object or money under the terms of the will of a person who has died. Although technically a legatee does not receive real property (a devisee), "legatee" is often used to designate a person who takes anything pursuant (according) to the terms of a will. The best generic term is beneficiary, which avoids the old-fashioned distinctions between legatees taking legacies (personal property) and devisees taking devises (real property), terms which date from the Middle Ages. See also: beneficiary devise devisee legacy will.

Today's term is:

rational basis.

As always, no dictionaries, please.


Programming Note

I'll be posting a bit less frequently for the next month as a result of a large project that I'm involved in and--it's still summer.   I'll still post, just not quite as often as normal. 

Yet Another Questionable Decision to Prosecute

People v. Swinton, 2006 NY Slip Op 05240, is a case with an extremely interesting set of underlying facts.  The Swintons were charged with Assault in the First Degree, Reckless Endangerment in the First Degree and Endangering the Welfare of a Child based upon allegations that they'd acted in a depraved manner by keeping their child on a strict vegan diet from the date that she was born. They were ultimately convicted of the charges following a jury trial and sentenced to state prison.

Earlier this month, the Court of Appeals concluded that the evidence against the Swintons was legally insufficient to establish the culpable mental state of depraved indifference.  The charges were reduced to Assault in the Third degree and remitted to the trial court for re-sentencing.  The Swintons were released from prison on July 18, 2006.

After reading the dissent from the Second Department's decision, I'm not sure that they should have even been prosecuted in the first place.  This case raises a number of the same issues as those that I previously discussed in this post regarding Starchild Abraham Cherrix and the court's order that required him to undergo traditional cancer treatment. 

The Swintons appeared to have genuinely believed that they were doing the right thing for their child, although their decisions had disastrous results.  From the Second Department dissenting opinion:

The defendants are the parents of a baby girl named "Ice," who was born July 31, 2000. Based upon her personal experiences, the defendant mother became mistrustful of doctors and modern medicine. As a result, the defendant mother researched childbirth alternatives, eschewed professional medical services, and gave birth to Ice at home, assisted only by the defendant father. Ice weighed approximately three pounds at birth.

The defendants are strict vegetarians. They determined that they would raise Ice on a vegetarian diet. It is not seriously controverted that Ice did not flourish on this diet. She remained undernourished and underdeveloped to the extent that when Ice came to the attention of child welfare authorities in November 2001, when she was approximately 16 months of age, she weighed 10 pounds when she should have weighed about 25 pounds. Ice had no teeth, underdeveloped and soft bones, and was unable to support her own head or bear her own weight. These and numerous other conditions were caused by "severe malnutrition secondary to insufficient intake of calories and protein and nutrition." In short, the strict vegetarian diet provided by the defendants was to blame for Ice's many maladies.

Clearly the defendants' treatment of Ice warranted involvement of child welfare officials (see Family Ct Act art 10). What is less clear to me is the need for criminal prosecution. The defendants each stand convicted, inter alia, of assault in the first degree. While I do not dispute the conclusion that the evidence adduced at trial was legally sufficient, under the unusual circumstances herein, I find that the jury's verdict was contrary to the weight of the evidence. Accordingly, I would reverse the assault convictions and dismiss the count charging same.

The dissent also sets forth a number of facts that support the defendants' assertion that they believed that she was a healthy, but small child, including the father's low IQ.  And, an EMT and a social worker that saw the child prior to the Swintons' arrest did not feel compelled to notify the authorities regarding any sort of neglect.

The Swintons were negligent--no doubt about it.  But reckless or evincing depraved indifference to human life?  Absolutely not.  And, how did society ultimately benefit from the prosecution and imprisonment  of this couple?  Was the greater good truly served?

Second Circuit Clerk's Office Relocation

If you're not already aware of this, the U.S. Court of Appeals for the Second Circuit moved the Clerk's office to 500 Pearl Street.  Telephone numbers, fax numbers and e-mail addresses  of all personnel will stay the same.

Beginning August 7, 2006, all oral arguments will be held in the Ceremonial Courtroom on the 9th floor of 500 Pearl Street.