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All NY Rules and Regs Available Online as of 1/1/08

Checkmark Not all New York agency rules and regulations are available online at the present time, but that will soon change.

As of 1/1/08, the unofficial version of all state agency rules and regulations will be available on the Department of State's website.  At that time, L 2007, Chapter 407 (Executive Law 106-a) goes into effect.

Regulations not currently available online that might prove to be of interest to criminal defense attorneys include DMV and DCOS records. 

Define That Term #254

Dictionary_2 Sunday's term was plenary, which is defined as:

adj. full, complete, covering all matters, usually referring to an order, hearing or trial.

There were a few good guesses, but no one got it correct this time around.

Today's term is:


As always, educated guesses are welcome, but dictionaries are not.

So Close! Please Vote.

I'm about to overtake my closest rival in the ranks!  I'm behind by only 8 votes! So close!

Please vote from every available computer today, if you haven't done so already.  Voting closes at 5 p.m. today, so this will be the last of my desparate and unseemly appeals.

Thanks for your support (and for putting up with my annoying appeals)!

My Kid and Homeland Security?

DhssmallPut on your tin foil hats folks.  You're in for quite a ride.   

At the outset, I apologize in advance for what I expect will be a lengthy post, but it's out of necessity.   And, while it's a bit off the beaten path from my typical subject matter, it arguably falls under the civil rights issues that I occasionally blog about.

Yesterday we received a letter from my kindergartner's school advising that the school district will be participating in a "Survey of Internet and At-Risk Behaviors" in order to provide "Internet safety, information security and cyber ethics education for our students."  (Update to clarify post:  The survey would be administered at school by teachers after each teacher had received 2 hours of training.)  We were advised that we could obtain additional information regarding the survey online.  And, of course, we could opt our child out of the survey if we chose to do so.

Sounds good, right?  That's what I initially thought, but since my kid is a big fan of routine and predictability, I decided to investigate a bit more before subjecting her to the survey process which might make her uncomfortable, given her particular constitution.

So, investigate I did.  I started with the website referred to in the letter--that of the "Rochester Regional Cyber Safety & Ethics Initiative".  I learned that 20 area school districts were participating in this initiative and from the Executive Summary learned that:

The Rochester Regional Cyber Safety and Ethics Initiative (The Initiative) is a non-profit partnership between the Rochester Institute of Technology (RIT), more than 20 area school districts, the Diocese of Rochester Department of Catholic Schools, Cambria Health Alliance (of Harvard Medical School) Division on Addictions, and regional offices of three national organizations, including: (1) The National Center for Missing and Exploited Children (NCMEC), (2) the Information Systems Security Association (ISSA), and (3) InfraGard, a program of the Federal Bureau of Investigation dedicated to information sharing between public and private sectors to help protect critical infrastructure. (Emphasis added).

"The problem" being addressed by the initiative was explained as follows:

    What is the Problem? Research indicates that cyber offenses among kids are increasing. This includes:     * Academic dishonesty     * Intellectual property theft     * Piracy of music, movies and software     * Online threats and harassment “cyber bullying”     * Credit card fraud     * Unwanted exposure to pornography     * Unwanted solicitations for sex     * Illicit purchasing of prescription and illegal drugs     * Writing and distributing malicious computer code     * Computer hacking.

The objective of the program were explained as follows:

What are the goals and objectives? • Act inclusively from ‘the ground up with a safer, more secure and responsible computing future in mind • Create, pilot, implement and evaluate research-driven Internet safety, information security and cyber ethics training for students, parents, educators and the adult workforce • Position the Rochester Region to assume a national leadership role on this issue and develop a template that can be applied nationally.

On the "Links" page, the organizations listed included the following:

An example of the peculiar (in my mind) survey that my child was being asked to participate in can be found here (Internet Explorer compatible only).

And, finally, we learn on the website that the initiative is headed by "Dr. Samuel McQuade, MPA, PhD, Graduate Program Coordinator at RIT's (Rochester Institute of Technology) Center for Multidisciplinary Studies and author of "Understanding and Managing Cybercrime" [Allyn & Bacon, 2005]", who is also a Graduate Program Coordinator - RIT, Fellow - Center for Advanced Defense Studies.

His bio. at the Center for Advanced Defense Studies is as follows:

Continue reading "My Kid and Homeland Security?" »

The New York Legal News Round Up

Latest_newsIt's Wednesday and time once again for the round up of interesting New York law-related headlines from the past week:

Technology and the attorney-client privilege

Drlogo11This week's Legal Currents column, which is published in The Daily Record, is entitled "Technology and the attorney-client privilege"  The article is set forth in full below, and a pdf of the article can be found here.

My prior articles can be accessed here.


Technology and the attorney-client privilege

The attorney-client privilege was significantly weakened by a recent New York County Supreme Court decision. In Scott v. Beth Israel Medical Center Inc., 2007 NY Slip Op. 27429, the court held that a New York physician’s e-mails to his lawyers were not privileged.

The e-mails in question related to possible employment litigation against the plaintiff physician’s then-employer, Beth Israel Medical Center, and were sent over the hospital’s e-mail server using the physician’s work e-mail address.

The hospital contended the emails were not made in confidence, since its policy provided that e-mails sent using the server should be for business purposes only and it “reserve(d) the right to access and disclose such (e-mails) … at any time without prior notice.”

The hospital admitted, however, that the plaintiff’s e-mail was not monitored.

The plaintiff asserted that, pursuant to CPLR 4548, the e-mails were made in confidence.

CPLR 4548 states: “No communication privileged under this article shall lose its privileged character for the sole reason that it is communicated by electronic means or because persons necessary for the delivery or facilitation of such electronic communication may have access to the content of the communication.”

As explained by Vincent Alexander in the Practice Commentaries following this CPLR provision, “in effect, [it] constitutes a legislative finding that when parties to a privileged relationship communicate by e-mail, they have a reasonable expectation of privacy.”

The issue of whether e-mails of this nature were privileged was of first impression for New York State courts, so the court relied heavily on In re: Asia Global Crossing Ltd., 322 BR 247 (SDNY 2005), a case with a similar fact pattern that addressed the issue of whether employee emails sent to counsel using an employer server were privileged.

In Asia Global, the court set forth four factors to be used in determining whether an employee has an expectation of privacy in his computer: 1) whether the employer’s policies ban personal and other objectionable use of its computers; 2) whether the employer monitors the use of the employee’s computer or email; 3) whether third parties have access to the computer or emails and 4) whether the employer notified the employee or the employee was aware of the use and monitoring policies.

The Scott court applied these factors and concluded the emails were not made in confidence. The court recognized CPLR 4548 trumps the third factor regarding third party access to the e-mails, but the hospital prevailed as to the other factors since an e-mail policy was in place, the hospital retained the right to monitor e-mails and the plaintiff, as a hospital administrator, had both actual and constructive notice that the hospital might monitor e-mail correspondence.

I daresay the court got it wrong.

On its face, CPLR 4548 specifically negates both the second and third Asia Global factors regarding the setting in which communication occurs because privilege does not disappear simply because a third party “may have access to … [a] communication.”

That leaves only the first and fourth factors in play, which revolve around divining the plaintiff’s subjective expectation of confidentiality.

As explained in Curto v. Medical World Communications Inc., 2006 WL 1318387 (EDNY), a case that discussed the Asia Global decision, one important factor to consider in determining the em-ployee’s expectation is the actual practices of the employer: “(I)n light of the few instances of actual monitoring … together with the fact that many … employees had personal e-mail accounts at work, employees were lulled in a ‘false sense of security’ regarding their personal use of company-owned computers,” Id. at 8.

In Scott, the court likened the effect of the hospital’s email policy to “hav(ing) the employer look … over your shoulder each time you send an e-mail,” Scott, supra. at 3.

However, given the hospital’s actual practice, which was to refrain from monitoring, e-mails sent by the plaintiff were more akin to sending an e-mail after hours, when no one was around, so as to avoid the remote possibility your employer might view it on the screen.

This argument is buttressed further by the fact that the plaintiff, as a hospital administrator, likely was aware of the hospital’s actual practices regarding e-mail monitoring.

The court’s holding in this case ignores the legislative intent behind the enactment of CPLR 4548 and the legitimate expectation of confidentiality the plaintiff had regarding e-mail communication with his attorneys. Any other conclusion fundamentally weakens the attorney client privilege by eroding the trust that serves as the very foundation of an open, honest and successful attorney-client relationship.

Please Vote Daily!

This post is aimed toward my subscribers.  There's a good number of you, and I can only assume that you appreciate the content that I provide, since you've gone so far as to subscribe to my blog.

If that's the case, I would be so appreciative if you'd take a moment out of your busy day to vote for Sui Generis in the 2007 Weblog Awards contest.  Sui Generis is a top 10 finalist, as explained more fully in this post.

Vote here.  You can vote once every 24 hours through Thursday, November 8th.

Thanks so much for your continued support! 

The New York Legal Blog Round Up

Blawgs It's Monday and time for the weekly round up of interesting posts from my fellow New York law bloggers:

New York Attorney Malpractice Blog:

New York Civil Law:

New York Personal Injury Law Blog:

No-Fault Paradise:

Second Circuit Sentencing Blog:

Simple Justice:

Wait a Second!:

Gen X, Gen Y and the Legal Profession--Incompatible?

Picv19st51It's been a while since I posted about what I now like to refer to as "legal elasticity."   But, it's been on my mind quite a bit lately, in large part because I was recently invited to join the New York State Bar Association's "Gender Equity Commission" and am co-chair of the "Family and Careers Committee" of the Greater Rochester Association of Women Attorneys.

Not surprisingly, my position regarding the legal profession and its antiquated views of work/life balance have not changed.  As far as I'm concerned, legal employers are in for a rude awakening now that Gen Y has entered the workforce.  Both the men and women of this generation that just graduated from law school last spring are more than willing to work for less money in exchange for a better work life balance. 

In other words, the legal field had better begin to think outside the box and allow more elasticity in work arrangements or pay the price.  If legal employers continue to essentially ignore the demands of Gen X, and now Gen Y, employees, it will soon affect the bottom line.  The rubber band will snap back and then they'll see elasticity in action.

A recent study by Hildebrandt International regarding associate retention supports my theory.  The executive summary of the study can be found here

This study sets forth four different types of associates:

  • Career Practitioners Approximately a quarter of associates have “traditional” aspirations to build a career in professional practice and to develop into partners. They are relatively highly satisfied, and are willing to sacrifice their personal life for professional advancement.
  • Flexibility Seekers About a quarter of associates demonstrate a particularly strong interest in flexible hours and alternative career tracks. They are not any more likely to be in a caring role (looking after children or others) but they do wish to reduce hours and pay. Overall this group is the least satisfied and few wish to become partners.
  • Called Lawyers Slightly less than a quarter of associates can be identified by a love of the law and their interest in pursuing careers in public service or education. Disinterest in partnership does not mean that they do not wish to contribute to the firm and to be involved in management, but they are only reasonably satisfied and firms do not appear to be meeting their needs particularly well at present.
  • Willing Workers Just over a quarter of lawyers identify themselves through a willingness to be managed and their relatively high satisfaction. They do not demonstrate a particular passion for the law, nor a willingness to sacrifice personal life for advancement.

From the summary:

Performance is relatively similar across all groups. Current approaches to associate development and retention seem to be particularly effective at meeting the needs of the Career Practitioners, but they are failing to provide equivalent satisfaction to the other groups. Many firms are therefore only appealing strongly to about a quarter of the associate population, and the ability for firms to address themselves to the other groups will be key to winning the “war for talent”...

The changing demographics of the legal profession make the need to appeal to female associates a business priority rather than a diversity issue. Firms need to address the factors identified in order to improve satisfaction and encourage a larger proportion of female associates to pursue a career as a partner.

The report offers this conclusion:

Associates are not the unhappy collection of unfulfilled employees portrayed in the media. As a group, they are engaged, interested, and happy with their compensation. Very few show any interest in leaving the profession. On the other hand, only a small proportion aspires to partnership. Many are seeking alternatives. Some of this relates to the wide and varied aspirations of young lawyers and some of it to the unattractiveness of private practice to significant segments of the population.

(Emphasis happily added)

Oh snap!  Legal employers sit up and take notice.  If you don't, trust me--you'll regret it.