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New York Legal News Round Up

Latest_news_2I'm enjoying this absolutely beautiful Wednesday as I blog from my deck and my kids swing on the swing set in the backyard.  I think that Spring has finally arrived in Upstate New York. 

Of course, legal news remains abundant despite the wonderful weather, so what follows are interesting  New York law-related headlines from the past week:

Lawyering Is Quite the Balancing Act

Drlogo11 This week's Daily Record column is entitled "Practicing Law in the 21st Century."  The article is set forth in full below and a pdf of the article can be found here.

My past Daily Record articles can be accessed here.


Lawyering is quite the balancing act

“What struck us as we reviewed the results of these forums was that the attorneys’ responses — regardless of their number of years in practice, size of firm, practice setting, etc. — were consistent on one central point: They all were having a very difficult time achieving a balanced life in the law. Again, we wish to emphasize that when we refer to a balanced professional and personal life, we embrace ... not only attention to private interests, family and friends, but also involvement in bar association, civic, and community activities, all of which contribute to achieving a well-balanced life. … Most felt that, at the time they decided to go to law school, they didn’t fully appreciate the extent of the demands a legal career would place on them.”

— New York State Bar Association’s “Final Report of the Special Committee on Balanced Lives in the Law,” March 7

As the recent NYSBA “Final Report of the Special Committee on Balanced Lives in the Law” concluded, the law can be all encompassing.

It’s always been that way, hence the saying “the law is a jealous mistress.”

Attempting to balance one’s chosen career with other non-legal obligations such as the demands of life outside of the office can be a delicate and difficult balancing act for both male and female lawyers.

Prior to becoming a lawyer, I didn’t give the idea of work/life balance much thought. All I’ve ever really wanted to do is litigate.

I spent the first half of my life methodically planning and creating a strong foundation for the first few years of my life as a litigator. But, I was shortsighted and failed to consider that life might throw me a curve ball when I least expected it — in my case, just three weeks before my wedding, when the man I would soon call my husband was diagnosed with testicular cancer.

Not surprisingly, that diagnosis changed me. It changed everything.

I’d met the man I loved and was going to live happily ever after, as both a lawyer and “wife,” much as that term annoyed me. Maybe we’d have kids, too. Who knew?

And then, on that fateful day in April 1998, he was diagnosed with testicular cancer. If he survived, there was a good chance we would face fertility issues. Fertility issues, of all things — when I wasn’t even sure I wanted kids. And, he might die, although, we were assured his particular cancer was “quite curable.” Apparently, we were supposed to feel good about that.

I tried to feel hopeful, but it wasn’t easy. The most difficult times of the day for me were the commutes to and from work. I would find myself stuck in rush hour traffic, seemingly unable to think of anything but the horrible cancer that was invading his body and ruining my marriage before it even began.

Once at work, I was fine (in large part due to the support and understanding of my then-supervisor Jill Paperno, for which I am eternally grateful).

My demanding schedule as an assistant public defender kept my mind more than occupied during the day. Immersing myself in my work seemed to do wonders for my outlook, and at the time I prided myself in the fact that I’d missed only two days of work throughout the entire course of his treatment.

In retrospect, I was taking the easy way out. I avoided the difficult task of confronting reality by convincing myself that my all-important career came first. My husband attended appointments alone, including the doctor’s visit where he was advised his cancer was more serious than originally thought.

If I could do it all again, I’d have been by his side more often throughout this trying time.

Judging from the results of the NYSBA’s study, I’m not alone in my misgivings about the demands of my chosen career. Perhaps the results and recommendations of the study will assist in bringing about a much-needed change in the profession and in the attitudes of those at the top of the legal ladder.

The New York Legal Blog Round Up

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

Indignant Indigent:

New York Attorney Malpractice Blog:

New York Civil Law:

New York Personal Injury Law Blog:

New York Public Personnel Law:

Second Opinions:

Simple Justice:

Wait a Second!:

Defined That Term #278

Dictionary_2 Last Sunday's term was dedimus potestatum, which is defined as:

An outdated legal procedure that permitted a party to take and record the testimony of a witness before trial, but only when that testimony might otherwise be lost. For example, a party to a lawsuit might use the procedure to obtain the testimony of a witness who was terminally ill and might not be able to testify at the trial. Nowadays, the Federal Rules of Civil Procedure routinely permit the taking of testimony before trial if that testimony might otherwise be lost.

No one guessed this time around.

Today's term is:

words of procreation.

I'd never heard of this particular term before--I'd be interested in seeing if any of you have.

Plus, I figured it would likely lend itself to some creative definitions, which are always entertaining.

As always, no dictionaries, please.

Are Blood Test Results Obtained Via Warrant Protected by the Physician-Patient Privilege?

Gavel2 People v. Elysee, 49 A.D.3d 33, 847 N.Y.S.2d 654 (2d Dept. 2007) is an interesting case.  The defendant was involved in an automobile accident which involved a fatality.  Shortly thereafter, the defendant was transported to the hospital and a blood samples were obtained via a warrant. 

The defendant moved to suppress the blood test results, making the novel argument that the seizure of his blood violated the physician-patient privilege. 

The Court disagreed with the defendant’s assertion, holding that a blood specimen taken by a medical professional is not “information” protected by New York’s statutory physician-patient privilege:

In conclusion, there is nothing in the language of CPLR 4504(a) or in the case law interpreting it that supports its application to the physical blood samples at issue here. Moreover, there is simply no compelling public policy interest that would justify expanding the physician-patient privilege to a physical blood sample. To hold otherwise would deprive the jury of lawfully seized material and probative evidence. Thus, we conclude that the physician-patient privilege is not applicable to a physical blood sample drawn by a medical professional and lawfully seized pursuant to CPL 690.10. Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was to suppress the search warrant blood samples.

I haven't researched this issue, but if other Department's have not yet addressed this issue, it might be worth a shot.  Another novel argument that I've seen made in other jurisdictions is that seizure of a blood sample violates HIPAA.  I'm not sure if that argument has been made in New York, but again--it's worth a try.

Judge Kaye Sues to Obtain Pay Increase for New York Judges

Gavel2 Judge Kaye has thrown down the gauntlet and followed through on her promise to sue to enforce a pay increase for New York State judges.  A copy of the Summons and Complaint can be accessed here.

As reported in this article from the New York Law Journal, the lawsuit was filed in Manhattan Supreme Court just one day after the legislature failed to include a pay raise for New York judges in the state's budget. 

As explained in the article:

The suit...argues that the governor and the Legislature, by failing to enact a raise for the state's 1,300 judges, have failed to uphold their constitutional obligation to provide for an independent judiciary. The complaint also contends that the other branches of government have effectively come to violate a provision of the state Constitution prohibiting the pay of judges from being diminished...

Two other suits for higher judicial pay are also before state courts. The actions, filed by individual judges and supported by some judicial organizations, are on appeal before the Appellate Divisions in the First and Third departments. Supreme Court justices allowed the claims to go forward in each case on the separation-of-powers argument that Mr. Nussbaum also makes in Chief Judge Kaye's suit.

What an interesting development.  I can't wait to see how it plays out.

Hat tip:  New York Personal Injury Law Blog


The New York Legal News Round Up

Latest_news Spring has finally sprung!  It's about time. 

It's also time for the weekly round up of interesting law-related New York headlines:

Practicing Law in the 21st Century

Drlogo11 This week's Daily Record column is entitled "Practicing Law in the 21st Century."  The article is set forth in full below and a pdf of the article can be found here.

My past Daily Record articles can be accessed here.


Practicing Law in the 21st Century

Rapid technological advancements have changed the way the world functions; the practice of law has not been exempt from this change. The landscape of the legal field has been dramatically altered by the advent of high-speed Internet, email, data phones, and remote office capabilities.  Law firms are now grappling with issues of e-Discovery and e-filing is becoming commonplace.

These issues have been at the forefront of my mind in recent weeks, as I prepare for a CLE that I’ll be participating in at the MCBA on May 15, 2008, from 9 am-noon: “Practicing Law in The 21st Century — Practice Management and Substantive Law Resources on the Internet.” The goal of this CLE is to make technology more accessible and useful to lawyers in their practices.

Technology has made the practice of law simpler for some, while other attorneys find themselves struggling to keep up with the changes or, alternatively, ignoring technology in the futile hope that it will simply disappear.

The fact remains, however, that technology is here to stay. In order to succeed in a rapidly evolving marketplace, lawyers must embrace change and learn to use technology to their advantage.

Computers and the Internet can be used to improve all aspects of a law practice. The Internet and data phones allow lawyers to obtain information anywhere, anytime. Office servers can be accessed remotely on data phones or home computers, thus allow- ing lawyers timesaving flexibility. A lawyer in the middle of trial can now step into the hallway and conduct legal research via a data phone.

Vast amounts of information relevant to the practice of law can be obtained online. In addition to the traditional Web-based legal research companies such as Westlaw and Lexis-Nexis, there are now low-cost Web-based research alternatives available.

And, if you know where to look, large amounts of information can be accessed online at no cost, including case law, both federal (1997-present) and New York (from 1995 to the present). New York and federal rules and regulations are also available, as are New York State Attorney General opinions and the 2007 Codes of New York State.

Online resources can keep attorneys current and on top of changes in their specific areas of practice as well. Online news articles and legal blogs are great tools in this regard.

There is also a vast assortment of cutting-edge resources avail- able on the Internet to assist attorneys in managing their productivity and their law practices. There are low cost Web-based practice management systems that can replace traditional software. Free Web-based email, calendaring systems, word-processing, and phone and fax sys- tems can replace traditional and costly alternatives.

Networking opportunities abound online. Between listservs, professional networking sites such as LinkedIn and social networking sites such as Facebook, lawyers have more opportunities than ever to interact with and learn from lawyers across the country.

Of course, technological change has made certain aspects of legal practice more difficult and confusing. The most evident example of this is the ever-prevalent issue of E-discovery. Since the amendment of the Federal Rules of Civil Procedure in December 2006, businesses and their lawyers have struggled to respond to e-Discovery requests and to alter their business practices in order to preserve e-data and thus avoid sanctions under the new rules.

Fortunately, there are a number of free and useful resources on the Internet, which can assist attorneys in complying with the new rules. In addition, there are companies that now assist businesses with the e- Discovery process, such as DocuLegal.

There is no question that technology has transformed the legal profession and will continue to do so in the future. Rather than keeping your head in the sand, why not embrace technological changes and learn to use them to your advantage? The short-term investment will be minimal and the long-term pay off will be huge — not a bad trade-off, all things considered.

The New York Legal Blog Round Up

Blawgs It's a semi-nice almost-Spring day in Upstate New York, 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 Public Personnel Law:

Second Opinions:

The Sienko Law Office Blog:

Simple Justice:

Wait a Second!:

Define That Term #277

Dictionary_2 Last week's term was nolle prosequi, which is defined as:

Latin for "we shall no longer prosecute." At trial, this is an entry made on the record by a prosecutor in a criminal case stating that he will no longer pursue the matter. An entry of nolle prosequi may be made at any time after charges are brought and before a verdict is returned or a plea entered. Essentially, it is an admission on the part of the prosecution that some aspect of its case against the defendant has fallen apart. Most of the time, prosecutors need a judge’s permission to “nol-pros” a case. (See Federal Rule of Criminal Procedure 48a.) Abbreviated “nol. pros.” or “nol-pros.”

Edward Wiest got it right!

Today's term is:

dedimus potestatum.

As always, no dictionaries, please.