New York County Lawyer

By Robert Half Legal

Continued hiring within the legal field isanticipated through the remainder of 2011.According to lawyers interviewed for thequarterly Robert Half Legal Hiring Index*,25 percent said they plan to add legal jobsin the fourth quarter of 2011. Much of thehiring is expected to take place at lawfirms.The survey was based on telephone

interviews with 100 lawyers at law firmswith 20 or more employees and 100 corpo-rate lawyers at companies with 1,000 ormore employees. All respondents have hir-ing authority within their organizations.Some findings include:

• Law firms are rebuilding their teams,prompted in part by growth in litigation, bankruptcy and foreclosure, andlabor and employment law.

• Renewed business activity also is driving hiring.• Eighty-two percent of lawyers are confident in their organizations’ abilityto expand in the fourth quarter.• Ninety-six percent of respondents identified lawyers as the full-time position they intend to add.• Law firms and corporations also are

hiring paralegals and legal assistantsfor a wide range of responsibilities.

Lawyers reported difficulty locating topcandidates; 49 percent said it’s somewhator very challenging to find skilled legalprofessionals. This may stem from the factthat employers are increasingly selective,yet many are under pressure to immediate-ly fill roles, which adds to hiring difficul-ties. Also, professionals with the mostsought-after backgrounds may not beactively seeking new opportunities.

*To download the Robert Half LegalHiring Index, visit http://legal.rhi.media-room.com/legalhiringindex

NYCLA’s Young Lawyers’ SectionFosters a Spirit of Support andCongenialityHow can newly admitted lawyers con-

nect with colleagues in a congenial, sup-portive environment? NYCLA’s YoungLawyers’ Section (YLS) offers a myriad ofopportunities for those new to the profes-sion. “The Young Lawyers’ Section guidesand assists lawyers embarking on theircareers,” acknowledges former co-chairJeffrey M. Kimmel, a NYCLAboard mem-ber and partner at Salenger, Sack, Kimmel& Bavaro LLP who, as an experienced trialattorney, manages his firm’s medical mal-practice department. “The Section,” Jeffexplains, “caters to their needs and con-cerns by developing and sponsoring pro-grams focusing on job and networkingopportunities, and hosting informal meet-ings with judges and experienced lawyers.”

Among the programs offered arethe following:

Social and Networking EventsNYCLA members have enjoyed such

YLS social and networking events as theevening of bowling at Lucky Strike Lanes,the scotch-tasting reception and happyhours at popular restaurants and bars inManhattan. My fellow NYCLA officers,board members, committee chairs and othervolunteer leaders have joined me in wel-coming NYCLA members to these eventsand, for my part, I’ve learned a lot about theprofessional needs of these new attorneysand how NYCLA can support them in theirpractice. Coming up on October 27 is theever popular Oktoberfest, co-sponsored byNYCLA’s Membership Committee, whichis a meet-and-greet and beer-tasting recep-tion. And on November 21, the Section ishosting a pre-holiday networking receptionat Fiddlesticks, a West Village pub.

"In Chambers" and “In Practice” SeriesAccording to the current YLS co-chair,

Daniel K. Wiig, an associate at Mintz &Gold LLP who practices commercial litiga-tion, “The ‘In Chambers’ series providesour members with the unique opportunityto meet with sitting jurists in a relaxed set-ting as they share their perspectives on thepractice of law.” Hosts of upcoming “InChambers” programs include: Hon. RobertS. Smith, Associate Judge, NewYork Courtof Appeals (in November); Hon. DebraAnn Livingston, Judge, U.S. Court ofAppeals for the Second Circuit (February2012); and Hon. Sherry Klein-Heitler,Administrative Judge for Civil Matters,First Judicial District (April 2012).Similarly, the “In Practice” series providesYLS members with the opportunity to meetwith a practice leader, who shares someperspectives on a specific area of the law.Speakers at upcoming “In Practice” pro-grams include: renowned first amendmentlawyer Floyd Abrams (January 2012) andManhattan District Attorney Cyrus R.Vance Jr. (March 2012). These informativeprograms are usually conducted as abrown-bag lunch or after-work discussion.

Career AdvancementThe Section’s successful career

advancement programs have included,

most recently: "Obtaining Choice JobsOutside the Big Firms," featuring younglawyers from various fields speakingabout their experiences in specializedlegal fields, such as entertainment, publicinterest, criminal and insurance defenselaw. One such program “Fashion Matters:The Essentials of a Business Wardrobe,”with representatives from BrooksBrothers, as well as human resourceattorneys from large firms, who advisedattendees on the latest fashions, what towear on “casual day” and other style tips.“In addition, our professional develop-ment series,” explains YLS Co-ChairBrett S. Ward, a partner at Blank RomeLLP who practices matrimonial and fam-ily law, “offers a wide range of speakers,from a rainmaking expert and employ-ment recruiter to the editor-in-chief of theNew York Law Journal.” The Section’sPractice of Law series, led by experi-enced lawyers, is designed to help soloand small-firm practitioners manage theirpractice.

Public ForumsPublic forums provide members and

nonmembers with the opportunity to learnor enhance their understanding of specificcareer paths in the law from a panel ofexperts. Upcoming forums, which are con-ceived and implemented by YLS membersand are generally followed by networkingreceptions, include: "MultilingualLawyering: Challenges and Opportunities"(October 12), "So You Want to Be a TrialLawyer?” (January 2012) and "TheLawyer Who Isn't a Lawyer:Nontraditional Jobs for Attorneys" (March2012).I encourage NYCLAmembers to partic-

ipate in these and other exciting programs,and become part of a community that youcan count on.

N E W Y O R K

COUNTY LAWYERI N S I D E

Volunteers Needed for ProBono Projects

Pg. 3

NYCLA’s MemberSatisfaction Survey

Pg. 8

New NYCLA In-House/Outside CounselCommittee

Pg. 11

Book Review: JudgesUnder Fire: HumanRights, IndependentJudges, and the Rule ofLaw, by Hon. Harold Baer

Pg. 10

Want to be a Mentor?Pg. 5

October 2011 Visit us at www.nycla.org Volume 7 / Number 7

T A B L E O FC O N T E N T S

The Current Hiring Environment: Where Are the Best Opportunities?

MESSAGE FROM STEWART D . AARONPRES IDENT OF THE NEW YORK COUNTY LAWYERS ’ AS SOC IAT ION

Attorneys Guide ........................................10Book Review – Judges Under Fire,by Hon. Harold Baer Jr. .........................10CLE Institute ...............................................4CLE Programs ............................................5CLE Tech Programs ..................................10Criminal Justice Section’s Public ServiceFellowships’Award-Winning Essays .....13Committee Connection .............................11Construction Law Committee Journal ......12Ethics Hotline ..............................................5Events Calendar ..........................................2Library Notes ............................................10Membership ................................................6Message from Barbara Moses, Presidentof the NYCLA Foundation ......................3Message from Stewart Aaron, Presidentof NYCLA ................................................1

New York City Criminal Courts Manual ..11New York Law Journal Article by NYCLAPresident Stewart D. Aaron ......................7NYCLA Renames Minority JudicialInternship Program ...................................3NYCLA’s Annual Dinner ...........................9Preparing for Media Interviews ..................7Public Policy Developments .......................7Public Service Awards Reception .............12Recent Events ..............................................8The Current Hiring Environment ...............1Volunteers Needed for Two Pro BonoProjects .....................................................3Want to be a Mentor? .................................5Young Lawyers’ Section October Events ...14

October 2011 / The New York County Lawyer2

OctoberPUBLIC FORUM/NETWORKINGMIXER: MULTILINGUALLAWYERING – CHALLENGES ANDOPPORTUNITIESWednesday, October 12 – 6:30 PMPlace: NYCLA Home of Law –14 Vesey StreetFREEPanelists, who comprise multilingualattorneys from the private, governmentand public interest sectors, will present:an overview of their career pathsand ways in which they apply their multi-lingual skills; the job opportunities andcareer development resources available tomultilingual attorneys; the challenges thatcan arise when working with multilingualclients and intermediaries, such as inter-preters and translators; and the interrela-tionship between language and culturalidentity/understanding. The YoungLawyers’ Section seeks to raise awarenessof the many career and pro bono opportu-nities available to multilingual lawyersand to encourage young lawyers to incor-porate their language skills into their legalpractice. The presentation will be fol-lowed by a Q&A session and networkingmixer.Confirmed Speakers: Lauren Buonome, asso-ciate, Jones Day; Sandra Bryan, CoordinatorCourt Interpreting Services, Office of CourtAdministration, NYS Unified CourtSystem; Kin Ng, Kings County DistrictAttorney’s OfficeProgram Chair and Moderator: DawnMaruna, Esq., Mound Cotton Wollan &GreengrassSponsor: TransperfectCo-Sponsor: NYCLA’sYoung Lawyers’SectionRSVP: http://bit.ly/nGBqeT

PRACTICE OF LAW SERIES:PREPARINGA TRIAL NOTEBOOKThursday, October 13 – 6:00 PMPlace: NYCLA Home of Law –14 Vesey StreetFREE AND OPEN TO NYCLAMEMBERS ONLYSpeaker: Jeffrey M. KimmelLearn the basics of preparing a trial note-book, issuing subpoenas, jury selection,opening/closing statements anddirect/cross examination. Evidentiaryissues including in limine motions,demonstrative evidence and objectionswill be discussed.RSVP: Visit NYCLA’s events calendar atwww.nycla.org

MEMBERSHIP EVENT: CLIENT-CENTRICMARKETINGTuesday, October 18- 6:00 PMPlace: NYCLA Home of Law –14Vesey StreetFREEANDOPENTONYCLAMEMBERS ONLYSpeaker: Russ Korins, Esq.RSVP: http://bit.ly/ouKlnB (seating is limited)

PRACTICE OF LAW SERIES: TRIALTECHNIQUES FOR BEGINNERSThursday, October 20 – 6:00 PMPlace: NYCLA Home of Law –14 Vesey StreetFREE AND OPEN TO NYCLA MEM-BERS ONLYSpeaker: Jeffrey M. KimmelDetailed discussions concerning trial strate-

gy, witness preparation, jury selection,opening/closing statements and direct/crossexamination. Hearsay objections and otherevidentiary issues will be discussed.RSVP: Visit NYCLA’s events calendar atwww.nycla.org

SPECIAL EVENT: FEDERAL COURTSCOMMITTEE’S LUNCHEONHONORING THE FEDERAL COURTSIN NEWYORK CITYWednesday, October 2612:00 PMPlace: NYCLA Home of Law –14 Vesey StreetEdward Weinfeld Awardee: Hon. John F.Keenan, Judge, United States District Courtfor the Southern District of NewYorkAward Presenter: Hon. Kevin ThomasDuffy, Judge, United States District Courtof the Southern District of New YorkThe Edward Weinfeld Award is presentedeach year to a member of the bench orbar who has made distinguished contri-butions to the administration of justice.Sponsor: NYCLA’s Federal CourtsCommitteeRSVP: Tickets are $125 each or $1,500 fora table of ten with a firm placard. For moreinformation, contact Luncheon Chair HenryJ. Kennedy, Willkie Farr & Gallaher LLP, at212-728-8789 or [email protected].

OKTOBERFEST MEET & GREET:MEMBERSHIP ANDYOUNGLAWYERS’ SECTION EVENTThursday, October 27 - 6:00 PMPlace: NYCLA Home of Law –14 Vesey StreetFREE AND OPEN TO NYCLAMEMBERS ONLYNew members are invited to come and net-work with NYCLA committee chairs andother NYCLA members at the Home ofLaw while enjoying refreshments and agreat selection of Oktoberfest beers.RSVP: http://bit.ly/oaVkmL

NovemberPUBLIC FORUM: JUDICIALINDEPENDENCEWednesday, November 2 - 6:00-8:00 PMPlace: NYCLA Home of Law –14 Vesey StreetFREEPanelists: Zachary W. Carter, Esq., partner,Dorsey & Whitney LLP; Ben B.Rubinowitz, Esq.,partner, Gair, Gair Conason, Steigman,Mackauf,Bloom&Rubinowitz;WilliamK. Rashbaum,reporter, The New York Times;Michael S.Ross, Esq., Law Office of Michael S. Ross;Hon. Terry Jane Ruderman, Justice; NewYork State Court of Claims and vice chair,NewYork State Commission on JudicialConductModerator: Hon. Betty Weinberg Ellerin,Presiding Justice, Appellate Division, FirstDepartment (ret.)Sponsors: NYCLA’s Judicial Section andTask Force on Judicial IndependenceRSVP: http://bit.ly/qkni6c(For more information, refer to the articleon page 11.)

PRACTICE OF LAW SERIES:KEEPINGYOUR FIRM’S FINANCESThursday, November 3 – 6:00 PMPlace: NYCLA Home of Law – 14 VeseyStreetFREE AND OPEN TO NYCLA

To Advertise in New YorkCounty Lawyer, Call (866) 867-9121

MEMBERS ONLYSpeaker: Richard A. KlassDiscussion of various financial matters con-cerning starting and running your law prac-tice, including taxes, insurance, bookkeep-ing, software, time recording and office sys-tems.RSVP: Visit NYCLA’s events calendar atwww.nycla.org

PRACTICE OF LAW SERIES: WHATJUDGESWANTYOU TO KNOWThursday, November 10 – 6:00 PMPlace: NYCLA Home of Law – 14 VeseyStreetFREE AND OPEN TO NYCLAMEMBERS ONLYSpeaker: Jeffrey M. KimmelGet important tips on what judges expectduring motion practice, preliminary confer-ences, pre-trial conferences, settlement con-ferences and the trial. Proper courtroom eti-quette and behavior will also be discussed.RSVP: Visit NYCLA’s events calendar atwww.nycla.org

PRACTICE OF LAW SERIES: LEGALETHICS YOU NEED TO KNOWThursday, November 17 – 6:00 PMPlace: NYCLA Home of Law – 14 VeseyStreetFREE AND OPEN TO NYCLAMEMBERS ONLYSpeaker: Lewis F. TesserAn inside look at the attorney disciplinaryprocess and the new Rules of Conduct. Thediscussion includes an examination of howto avoid disciplinary complaints and how torespond to disciplinary complaints.RSVP: Visit NYCLA’s events calendar atwww.nycla.org

SPECIAL EVENT: LAWANDLITERATUREAWARD RECEPTIONMonday, November 21 - 6:00 PMPlace: NYCLA Home of Law – 14 VeseyStreetFREEAward Recipient: Jeffrey Toobin, staffwriter at The New Yorker, author of TheNine, and senior analyst for CNNSponsor: NYCLA’s Law and LiteratureCommittee

RSVP: http://bit.ly/p2VXDF(The November issue will contain moreinformation about the event.)

“IN CHAMBERS’ PROGRAMTuesday, November 22 – 12:30-1:30 PMPlace: TBDFREE AND OPEN TO NYCLA MEM-BERS ONLYHost: Hon. Robert S. Smith, AssociateJudge of the NewYork Court of AppealsRSVP: [email protected]

DECEMBER

PRACTICE OF LAW SERIES: WHATEVERY LAWYER NEEDS TO KNOWABOUT THE PART 137 FEE DISPUTERESOLUTION PROGRAMPlace: NYCLA Home of Law – 14 VeseyStreetFREE AND OPEN TO NYCLA MEM-BERS ONLYThursday, December 1, 2011 – 6:00 PMSpeakers:Martin L. Feinberg and HeidiLeibowitzYour rights and responsibilities when yourclient disputes your fees and the lawrequires that you arbitrate.RSVP: Visit NYCLA’s events calendar atwww.nycla.org

SPECIAL EVENT: TASK FORCE ONJUDICIARY BUDGET CUTS PUBLICHEARINGFriday, December 2 - 10:00 AM – 5:00PMPlace: NYCLA Home of Law – 14 VeseyStreetFREE(The November issue will contain moreinformation about the public hearing.)

NYCLA’S 97THANNUAL DINNER:CELEBRATING LEGALCOMPLIANCEAND ENFORCEMENTTuesday, December 13Reception: 6:30 PM; Dinner: 7:30 PMPlace:Waldorf Astoria Hotel – 49th Streetand Park AvenueFor more information, refer to page 9.

Events are subject to change; please check the Association’s website, www.nycla.org, for schedule changes and additions.

Events Calendar

October 2011 / The New York County Lawyer 3

Dear Friends:

Autumn is now upon us and we allknow what that means: children areback in school, the leaves are turningcolors and NYCLA is about to launch itsannual appeal for the Second CenturyFund, asking you to open your check-books to help NYCLA protect access tojustice for all New Yorkers, improve ourcourt system, provide crucial pro bonoservices to low-income New Yorkers,assist unemployed and under-employedlawyers to get back on their feet – andpreserve and modernize our beautifulheadquarters building, where much ofthis work takes place.Your dues, unfortunately, do not cover

all of NYCLA’s programs and services.We depend on your contributions (madeto the NYCLA Foundation, which is rec-ognized by the IRS as a 501(c)(3) organ-ization) to carry out the programs thatmake us proud to be members ofNYCLA. The good news is that rela-tively modest donations go a long way atNYCLA. For example, a gift of $5000makes it possible for a promising law

student to become a minority judicialintern and spend the summer in thechambers of a participating federal orstate court judge. It takes only $2500 toprovide a fellowship to a young publicinterest lawyer struggling to pay off hisor her law school debt. Project Restore –our innovative pro bono program help-ing ex-offenders obtain vocationallicenses – operates on an annual budgetof under $1000 per client.You can make donations in these

amounts – or in any amount you choose –simply by going to www.nycla.org andclicking on “Giving to NYCLA.” You can

also mail a check, payable to the “NYCLAFoundation,” to NYCLA Foundation, 14Vesey Street, New York, NY 10007. Weare grateful for every contribution and arepleased to say “thank you” with a selectionof DVDs, books, prints and other gifts,described on our website. If you make adonation now, you will not only have thesatisfaction of giving back to your commu-nity; you will be able to ignore the SecondCentury Fund annual appeal emails (whichwill arrive in your in-box later this month)without feeling guilty!Since the NYCLA Foundation is rec-

ognized by the IRS as a 501(c)(3) organ-ization, gifts are deductible to the extentprovided by law.NYCLA needs both your support and

your ideas. Please do not hesitate to con-tact me with suggestions for fundraisingor related topics. You can reach me [email protected],

Barbara MosesPresident of the NYCLA Foundation

MESSAGE FROM BARBARA MOSESPRES IDENT OF THE NYCLA FOUNDAT ION

NYCLA’s Summer Minority JudicialInternship Program, established by for-mer NYCLA President and UnitedStates District Court Judge Harold BaerJr. and his wife, Dr. Suzanne Baer, in1989 to provide law students of colorwith eight-week stipended internshipswith state and federal judges, has beenrenamed “The Hon. Harold Baer Jr. andDr. Suzanne Baer Minority JudicialInternship Program.” The NYCLA

Board voted unanimously to adopt thename change on September 19 to honorthe vision and leadership role of JudgeBaer and his wife. In creating the pro-gram, the Baers understood that a suc-cessful legal career is obtained throughmentor relationships, training, hands-onexperience and access to meaningfulassignments. More than 175 law stu-dents of color have participated in theprogram, which is administered by

NYCLA’s Minorities and the LawCommittee, whose co-chairs are AshaSmith, a former intern in the program,and Seth Steed.In the words of NYCLA Past President

Catherine A. Christian, “Naming the pro-gram after Judge Baer and Dr. Baer is aperfect way to officially recognize theirpublic service commitment and tremen-dous leadership in increasing diversity inthe legal profession.”

NYCLA Renames Minority Judicial Internship Program toHonor the Vision of Hon. Harold Baer Jr. and Dr. Suzanne Baer

Project Restore

This pro bono project provides counselto individuals with misdemeanor orfelony convictions who have been deniedvocational licenses by the New YorkDepartment of State. This unique pro-gram provides representation for appli-cants whose adjudicated criminal historypredates the employment license applica-tion and is the basis for the denial.Training for volunteer lawyers who wishto participate in the project will be heldat NYCLA's Home of Law, 14 VeseyStreet, on Tuesday, October 25 from6:00-8:00 PM.The average pro se petitioner often

files inadequate documents, does notunderstand the burden of proof or isunable to argue effectively that anagency's decision is arbitrary and capri-cious. The volunteer's work will includeall elements of representing a client inan adversarial proceeding before a tri-bunal of record.Two CLE credits (1 Professional

Practice and 1 Skills) will be awarded to

those attending the training session. Formore information or to register for thetraining, please contact Lois Davis,director of Pro Bono Programs, [email protected] Note: To participate, you must

be admitted to the New York bar for atleast one year, be a NYCLA member ingood standing and attend the October 25training session.

Manhattan CLARO (Civil Legal Adviceand Resource Office) Project

Given the increasing number of prose litigants who have pressing need forlegal assistance on a host of consumerlaw issues, particularly consumer debt,NYCLA, in partnership with theFeerick Center for Social Justice atFordham Law School, launched theManhattan CLARO (Civil Legal Adviceand Resource Office) Project in 2008. Athree-hour training session for volun-teer attorneys will be held onWednesday, October 26, from 6:00-9:00 PM at the Brooklyn Bar

Association, 123 Remsen Street(between Clinton and Henry Streets inBrooklyn Heights).These consumer debt cases can be over-

whelming for pro se litigants; for exam-ple, many learn of a lawsuit only aftertheir wages have been garnished or theirbank accounts frozen. CLARO providesadvice-only, pro bono assistance to pro selitigants on Thursday evenings from 6:00-8:00 PM in the New York County CivilCourt at 111 Centre Street.Three CLE credits (1.5 Professional

Practice and 1.5 Skills) will be awarded tothose attending the training session contin-gent on volunteers completing six hours ofservice (i.e., three, two-hour CLARO ses-sions). For more information or to registerfor the training, please contact Lois Davis,director of Pro Bono Programs, [email protected] Note: To participate, you must

be admitted to the New York bar for atleast one year, be a NYCLA member ingood standing or a Fordham Law Schoolalumnus, and attend the October 26 train-ing session.

Volunteers Needed for Two Pro Bono ProjectsNYCLA's Pro Bono Department is offering trainings in October for two pro bono projects -Project Restore and Manhattan CLARO (Civil Legal Advice and Resource Office) Project.

NewYork County Lawyer is publishedmonthly (except January andAugust) for$10 per year by NewYork County Lawyers’Association, 14Vesey Street, NewYork, NY10007. Periodicals postage paid is mailed atNewYork, NY and additional mailingoffices. POSTMASTER: Send addresschanges to: NewYork County Lawyer, 14Vesey Street, NewYork, NY 10007-2992.

USPS #022-995ISSN: 1558-5786

$10.00 of membership dues is deducted fora one-year subscription to the NewYorkCounty Lawyer.

Copyright © 2011 NewYork CountyLawyers’Association. All rightsreserved. NewYork County Lawyers’Association grants permission forarticles and other material herein orportions thereof to be reproduced anddistributed for educational or profes-sional use through direct contact withclients, prospective clients, profes-sional colleagues and students pro-vided that such use shall not involveany matter for which payment (otherthan legal fees or tuition) is madeand provided further that all repro-ductions include the name of theauthor of the article, the copyrightnotice(s) included in the originalpublication, and a notice indicatingthe name and date of the Associationpublication from which the reprint ismade. Subscription rate: $10.00 peryear for non-members

NEW YORKCOUNTY LAWYER

Stewart D. AaronPresident

Sophia J GianacoplosExecutive Director

Mariana HoganChair, Editorial Board

Melissa J. YahreAssistant Executive Director ofMarketing and Membership

Development

Anita AboulafiaEditor

Director of Communications

New York County Lawyer ispublished by

Long Islander Newspapersunder the auspices of

the New York County Lawyers’Association. For advertisinginformation, call 631-427-7000.

Mailing address: 149 Main Street,Huntington, NY 11743.

Photo Credits

Anita AboulafiaAlanna Gluck

Help NYCLA Protect Access to Justice for All New Yorkers, Improve Our Court System,Provide Crucial Pro Bono Services to Low-Income NewYorkers, and much more.

Contribute to NYCLA’s Second Century Fund today by going towww.nycla.org and clicking on “Giving to NYCLA.”


CLE Institute Focuses on SkillBuilding in October

In October, the CLE Institute is focus-ing on programs that will help attorneysdevelop and build their skill sets.

All-Star Panel of Speakers Set forFederal Criminal Practice

Institute

NYCLA’s CLE Institute and theFederal Bar Council have once againjoined together to co-sponsor theFederal Criminal Practice Institute.The program kicks off Thursdayevening, October 13, with a networkingcocktail reception and Introduction byHon. Patricia Anne Williams, NYSSupreme Court. Program Chairs MarkB. Rosen, Mark B. Rosen, Esq., P.C.,John Jay College of Criminal Justice,and Alan Vinegrad, Covington &Burling LLP, have assembled an unpar-alleled roster of speakers, includingjudges from the Second Circuit Court ofAppeals, Eastern and Southern Districtsof New York, clerks and ChiefExecutives of the courts, members ofthe U.S. Attorney’s Offices and notedcriminal defense attorneys and academ-ics.Friday’s program focuses on initiation

of the proceedings, pre-trial issues, anethics discussion and an overview of theFederal Criminal Trial. Criminal defenseattorneys speaking on Friday include:Richard Albert, Jeremy Temkin and

Robert Anello, Morvillo, Abramowitz,Grand, Iason Anello & Boher, P.C.; KellyCurrie, Crowell and Moring, LLP;Marjorie J. Peerce, Stillman, Friedman& Shechtman PC; Marc Agnifilio,Brafman & Associates; William Pollard,Kornstein, Veisz, Wexler and Pollard;Henry Putzel III, Esq.; and AudreyStrauss, Fried Frank, Harris, Shriver &Jacobson LLP.Representing the U.S. Attorney’s

Office are: Jonathan Kolodner, SDNY;Marshall Miller, EDNY, and JohnBuretta, EDNY. Judicial panelistsinclude: Hon. Steven M. Gold, EDNY,Hon. John Gleeson, EDNY, andHon. Reena Raggi, U.S. Court ofAppeals for the Second Circuit.Saturday’s program will cover federal

evidence considerations, including a ses-sion on CSI, a discussion of the sentenc-ing guidelines, sentencing advocacy andfederal appeal considerations.Noted criminal defense attorneys

Richard Ware Levitt, Esq., BarryLeiwant, Federal Defenders, andProfessor Bruce Green, FordhamUniversity School of Law, will be joinedby representatives of the U.S. Attorney’sOffice, including Carolyn Pokorny,EDNY, and Jocelyn Strauber, deputy,Terrorism & International Narcotics Unit,SDNY. Hon. Frederic Block, EDNY, andHon. Richard Sullivan, SDNY, will bejoined by Hon. Karen Greve Milton, cir-cuit executive, U.S. Court of Appeals forthe Second Circuit, and CatherineO’Hagan Wolfe, clerk, U.S. Court ofAppeals for the Second Circuit.

NYCLA’s Ethics Institute Update

NYCLA’s Ethics Institute is sponsoringtwo programs this October. On October 4,Program Chair Bernard A. Krooks,Littman Krooks LLP, was joined by Ira K.Miller, Esq., Elizabeth Valentin, LittmanKrooks LLP, and ethicist Sarah D.McShea, Law Offices of Sarah DianeMcShea, in presenting Ethical Issues inElder Law and Special Needs Planning.On Wednesday, October 26, NYCLA’s

Ethics Institute will present Ethical IssuesConfronted During Litigation, focusingon the ethical dilemmas faced by litigators,which can often seem quite daunting.Indeed, there is a fine line between zealousadvocacy, sharp practice and misconduct –as well as the resulting implications ofeach. Using a series of real-life hypotheti-cals, a panel of experts, including ProgramChair Richard Maltz, counsel, Frankfurt,Kurnit, Klein & Selz, PC, and panelistsNicole Hyland, Frankfurt, Kurnit, Klein &Selz PC; Ann Scherzer, First DepartmentDisciplinary Committee; and RichardSupple, Hinshaw & Culbertson LLP; willprovide guidance on how to manage prob-lems that actually arise both inside andoutside the courtroom.

Special Skill Building Program:Acting for Lawyers

Join NYCLA’s Young Lawyers’ Sectionfor a special program on Thursday,October 20, as the CLE Institute welcomesAlan Blumenfeld and Katherine James,ACT OF COMMUNICATIONS®, found-ed 30 years ago to set a new standard in theart of advocacy. During this highly interac-tive program, the instructors will demon-strate the theatrical techniques lawyersshould use to optimize results in clientmeetings, negotiations, trials, mediations,arbitrations or other professional appear-ances. Attendees will learn what is neededto create and enhance the authenticity andimpact of their own communications.After all, according to the ACT OFCOMMUNICATIONS:

“Attorneys and actors share a com-mon mission: to rivet the listener’sattention on the drama at hand, con-trol their point of view, lead theirinstincts, and then convince theirminds of the story’s desired end…with an ovation for the actor, a deci-sive win for the attorney.”

Other Skill Building Programsin October

Learn the ins and outs of understand-ing, interpreting and analyzing two of themost important financial documents —balance sheets and income statements —at the October 11 program, Accountingfor Lawyers. Understanding theseimportant documents is particularly criti-cal for attorneys who: have clients withcollection matters involving a tradereceivable; represent creditors’ commit-tees in bankruptcy or debtors in bankrupt-cy proceedings; are involved in matrimo-nial disputes hinging on equitable distri-bution or maintenance awards; areinvolved in matters where business valu-ations are key issues; represent parties inmergers and acquisitions; are involved inmatters evaluating the viability of realestate transactions; and many more.Writing for a legal journal or other

legal publication is very different fromwriting a legal brief or memoranda.Getting published is a great way to raiseyour profile in your area of expertise, bol-ster your resume and even use as a mar-keting tool. Join a panel of experts,including William Ferullo, counsel,Trusts and Estates Magazine; SusanLipp, editor in chief, Trusts and EstatesMagazine; Paramjit Mahli, SCG LegalPR Network; Elliott Scheinberg, Esq.;and Elaine Song, legal editor, New YorkLaw Journal, ALM; for How to Write aJournal Article. Learn how to submit aproposal that gets noticed by the journaleditors without falling through the cracks,as well as the tips and techniques youneed to submit an article in “publishableform.” Hear directly from the editors oftwo prestigious legal publications, as wellas from an accomplished writer andauthor of numerous journal articles andlegal treatises. For more tips on businessdevelopment, see the article by ParamjitMahli on Preparing for MediaInterviews on page 7.

NYCLA’s Construction LawCommittee will co-sponsor ConstructionRisk Management on Monday, October17. Learn how to navigate the complexdynamics of the construction risk envi-ronment, especially in light of today’svolatile nature. A panel of experts willdiscuss the risks that construction con-tractors bear; the nature of constructiondefect and other litigation; the risks of

CLE Institute

(See CLE Programs on Page 5)

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unintended gaps in insurance coverage;the different types of construction insur-ance and bonding; and much more.Join a panel of experts on October 25 as

they discuss How to Handle a Wage andHour Case— the fastest growing type ofemployment claim today. Topics to becovered include: an overview of thedirection of wage and hour cases; nutsand bolts of both New York Labor Lawand Fair Labor Standards Act; tips andtechniques for practicing before relevantagencies; identifying wage and hourissues; common mistakes employersmake; tips for vetting the claims; individ-ual claims vs. class actions and joinderissues; conducting discovery; damages;and much more!

NewYork State SenatorLiz Kruger to Speak on Fair Pay

NYCLA’s Women’s Rights Committeeco-sponsored a special program on

October 6, Progress and Pitfalls in theEffort to Achieve Fair Pay and Work-Life Balance. Joining New York StateSenator Liz Krueger, author of S.5674,the Fair Pay Act, was Dina Bakst, co-president, A Better Balance, and LeslieKelmachter, president, New York StateTrial Lawyers Association, partner at theJacob D. Fuchsberg law firm and authorof A High Court (Very) Open to Business,New York Law Journal (July 7, 2011).

Special Program for LawStudents and Attorneys on

Developing Interviewing Skills

Since 1977, the founders of the ACTOF COMMUNICATION®, AlanBlumenfeld and Katherine James,have brought state-of-the-art communi-cation skills to over 30,000 attorneys.Besides their work in film, televisionand theater, Alan and Katherine have 30years of experience as expert legal con-sultants through the careful study oflearning and education theory, as wellas the study of human behavior. Theyknow that people communicate bestwhen telling a story – and an interviewis the place where you must both telland sell your story. This interactive pro-gram, co-sponsored by NYCLA’s YoungLawyers’ Section, will teach you theskills necessary to tell your story effec-tively, sell yourself and land the job thatyou really want. A networking recep-tion with precede the program. NOTE:No CLE credit is being offered for thisprogram.

SAVE the DATE

Criminal Trial Advocacy Institute: ABridge the Gap for Lawyers Interestedin Criminal Law, Thursday and Friday,November 3 and 4.

4th Annual Art Litigation and DisputeResolution Institute, Friday, November 18

Please note: Tuition Assistance isavailable for qualified attorneys for liveprograms offered by the CLE Institute.Check our website at www.nycla.org formore information and how to apply forTuition Assistance. Check our website forcourse details, faculty, complete programdescriptions and pricing.

Be sure to check our website for a com-plete listing of October programs.

October Programs

Thursday, October 13(Kickoff Cocktail Reception)6:00 –9:00 PMFriday, October 14 andSaturday, October 159:00 AM –5:00 PMFederal Criminal Practice InstituteFull Program:17 MCLE Credits: 3 Ethics; 7 Skills;7PP; Transitional and Non-transitionalRegistration Fee:Member: $255Non-Member: $355Single Day:MCLE Credits: Breakdown TBD;Transitional and Non-transitionalRegistration Fee:Member: $175Non-Member: $275

Monday, October 176:00 – 9:00 PMConstruction Risk Management3 MCLE Credits: 2 PP; 1 Skills;Transitional and Non-transitionalRegistration Fee:Member: $125Non-Member: $175

Tuesday, October 186:00 – 8:00 PMHow to Write a Legal Journal –Getting It Accepted, The PR Benefitsand Navigating the Copyright Issues2 MCLE Credits: 2 Skills; Transitionaland Non-transitional (also NJ)Registration Fee:Member: $35Non-Member: $55

Wednesday, October 196:00 – 8:30 PMSpecial Event – DevelopingInterviewing Skills That Really WorkNo MCLE Credit Offered for ThisProgramRegistration Fee:Member: $10Non-member: $15Law Students: FREE

Thursday, October 206:00 —9:00 PMActing for Lawyers: Developing theNecessary Storytelling Skills to Be AnEffective Advocate3 MCLE Credits: 3 Skills; Transitionaland Non-transitional (Also NJ)Registration Fee:Member: $125Non-Member: $175

Tuesday, October 256:00 – 9:00 PMHow to Handle a Wage and Hour Case3 MCLE Credits: 1 Ethics; 1 PP; 1Skills; Transitional and Non-transitionalRegistration Fee:Member: $125Non-Member: $175

Wednesday, October 266:00 – 8:00 PMEthical Issues Confronted DuringLitigation2 MCLE Credits: 2 Ethics; Transitionaland Non-transitionalRegistration Fee:Member: $75Non-Member: $125


CLE Programs(Continued from Page 4)

Ethics HotlineOctober 1-15

James B. Kobak Jr.212-837-6757

October 16-31Kyle Leingang212-837-6429

Please Note: Assignments are subjectto change.Questions to the Hotline are limited toan inquiring attorney’s prospectiveconduct. The Hotline does not answerquestions regarding past conduct, theconduct of other attorneys, questionsthat are being litigated or before a dis-ciplinary committee or ethics commit-tee, or questions of law. This notationshall not be construed to contain allHotline guidelines. For a full discus-sion of Ethics Hotline guidelines,please see “Guidelines on NYCLA’sEthics Hotline,” September 2006, NewYork County Lawyer, Vol. 2, No. 7. Toview the article, visit NYCLA’s web-site at www.nycla.org, click on Ethics(on the left-hand side of the page) andthen on Ethics Hotline.

Want to Be a Mentor?Need Someone to Mentor You?

In January 2010, NYCLA’s TaskForce on Professionalism in conjunc-tion with the CLE Institute launched apilot mentoring program. The programwas formally adopted by the NYCLABoard a year later and, since that time,the mentees have had the opportunityto meet one-on-one with experiencedattorneys, attend networking eventsand customized CLE programs andbecome active NYCLA committees.The third session of NYCLA’sMentoring Program concluded onOctober 5 with a practical CLE pro-gram focusing on the attorney-clientrelationship followed by a networkingreception. Current mentors andmentees mingled with program alum-ni, shared experiences and made newcontacts.

Goals of the Program

Each mentee is mentored by anexperienced attorney with a goaltoward enhancing the experience ofthe junior attorney in the legal profes-sion. After an extensive matching upprocess, each of the mentees isassigned a mentor who serves as acoach, sounding board for ideas,strategist for personal developmentand a resource on how to navigate thelegal profession in NewYork.The Program also seeks to

enhance professionalism by intro-ducing the mentees to programs and

services available at NYCLA,including committee membership,forums, professional developmentand other programs, pro bonoopportunities, and trainings classesand social events. Through a seriesof both structured and informalevents, the Mentoring Program alsosupplements the 1:1 relationshipwith CLE programs and informalmonthly get-togethers, providingthe mentees with the opportunity tonetwork with their peers, other men-tors and the Mentoring Program’sAdvisory Board,The next Mentoring Program ses-

sion will begin in January 2012.Experienced attorneys seeking togive back to the legal communityare encouraged to apply to serve asmentors. Many mentors agree thatthey have learned from their youngcolleagues as well. NYCLA mem-bers admitted to the NewYork Statebar between two and six years mayapply to be accepted in the 2012Mentoring Program. Applicationscan be downloaded from theNYCLA website.More information about the Program

and both mentor and mentee applica-tions are available on the NYCLA web-site at http://bit.ly/qumMyp. Join us foran informational session about NYCLA’sMentoring Program at NYCLA onOctober 12 in Room 5 on the 4th floor.RSVP to [email protected].


Professionalism and civility are not assimple as they appear. Every attorneyneeds to understand the disciplinaryprocess and the new Rules of ProfessionalConduct. When dealing with ethics, thereare many questions you need to ask andknow the answers to, including:• Can you share legal fees with a lawyer

who is not in your firm?• Can a client waive a conflict of interest?• What if you hit the “Send” email acci-

dentally and transmit confidential infor-mation to an adversary?• What do you do if your client is lying

on the record?• Can you help a client with a lawsuit

without appearing in the litigation?• How do lawyers get into trouble and

how do good people commit disciplinaryinfractions?

• How can you protect your license,make yourself a better lawyer and improveyour career with the same methods?• What are the escrow requirements that

you need to know?• How did the new Rules change the

ethical landscape?• Where is the line between civility and

zealous representation?Of course answering these questions in a

few sentences is challenging—that’s whatmakes the field so interesting. Join LewisTesser on Thursday, November 17 as hehelps navigate and answer these questions.Lew will also discuss the disciplinaryprocess in New York—how complaintsarise, how a case gets investigated, whichcases get prosecuted and the differentsanctions imposed for different offenses.Register today: http://bit.ly/r09x5t

Legal Ethics You Need to Know:November 17

Membership

Pay Your Dues in Fullfor a Chance to Win a 3-Credit CLE CourseCongratulations Barbara Ann Kluger of New York State Insurance Department.

Barbara was selected from those members who paid their first dues invoice in fullby August 30, 2011.

Members who pay their initial annual invoice in full by the drawing date are auto-matically entered in the drawing. One member is selected each month.

By Silfath Pinto

On October 5, Silfath sharedher insight to dressing for suc-cess at the program, Dress forSuccess: Dress Like thePowerful Woman You Are. Hereare some insights that Silfathshared with attendees.In today's competitive and

global market place, successful profes-sionals understand how important it isto invest money in developing theirpersonal brand and making sure theyconvey the right message. Whether youare beginning a new career, looking fora promotion or just got promoted, feel-ing good about the way you look isessential.It is important to realize that that

looking professional and on top of yourgame is not about spending a lot ofmoney on clothing. It is about buildinga stylish yet smart professionalwardrobe. If you feel good about yourabilities as well as your image, you willhave the complete package to be a suc-cessful professional.Here are some helpful hints in building

the perfect business wardrobe.

1. Dress appropriately: the Rules ofOffice Elegance

• Be aware of the office rules and stickwith them.

• Don't show your midriff and your cleav-age.

• Keep your straps under cover.• Think about the proper underpin ningwhen wearing something see through.

• Don't wear clothes that are too tight.

2. Get essential pieces

• 1 suit in a neutral color• 1 trouser in a neutral color• 1 jacket• 1 white button-down shirt• 1 little black dress• 2 pairs of jeans (1 for heels, 1for flats)• 1 black heel, 1 boot and 1 flat in

neutral colors• 1 structured handbag

3. Reinvent your basics

Most women think their work wardrobehas to be boring; this is actually a myth.You can definitely have some fun and becreative with your work wardrobe.Belt twist: A belt will introduce a new

dimension to a suit and add a flatteringline. The twist can be conservative with aneutral color or bold with a vibrant hue.Bold jewelry: It is all about giving the

center stage to exciting jewelry. A state-ment necklace, eye-catching earrings orsilk scarf will add some character to abasic suit.A splash of color: Work from the inside

with vibrant colors, interesting prints ordetails like ruffles. Another option is tospice your basic outfit with shoes.Lastly, remember that dressing for suc-

cess is about representing yourself in away that will support your goals and helpyou maximize your professional presencewith confidence and poise.Silfath Pinto, Image Consultant and

Wardrobe Stylist, believes every men andwomen deserves a stylish yet smartwardrobe that brings out the best in them,boosts their confidence and supports theirgoals, professional and personal.

Refine Your Professional Image toJump Start Your Career

NYCLAAuthor PensThe Seven Deadly Sins of LegalWritingNYCLA member Theodore L.

Blumberg donated The Seven DeadlySins of Legal Writing to the NYCLAAuthors Collection in the Library.Theodore contributes articles to theNew York Law Journal and lectures atthe Fahringer Seminars about legalwriting.His book is entertaining and can

help anyone learn to write more clear-ly. Here are some writing sins.“Passivity,” which is the overuse of

the passive voice that ends up slowingdown the action. The author explainswhen to employ the passive voice toyour advantage.“Abstraction” is the use of pur-

posely opaque language to cover allbases; Theodore illustrates misleading,abstract language in a passage fromthe CPLR that he rephrases and makesclearer.Using too many adverbs can bore

the reader by telling him or her what tothink about the language that followsthe adverbs. The author calls this the

sin of “adverbiage.”“Verbosity,” the use of too many

words, is also problematic; the authorsuggests including everything in a firstdraft and then pruning.“Redundancy” is a related literary

sin. Lawrence Sterne’s mock articlefrom Tristram Shandy, which is printedin the appendix, is a hilarious exampleof using too many words that say thesame thing. Mr. Sterne summarizes it inten words. Historically, lawyers werepaid by the word and the billable hour;consequently, that encouraged verbosi-ty and redundancy.Wordy footnotes should not clog a

document, but citations should beplaced in footnotes in order to keepthem from distracting readers.Double negatives are confusing and

should be used sparingly to make writ-ing more subtle.Theodore provides exercises so

readers can practice their new editingskills. The book has an index and ref-erences for further study.

By Paramjit L. Mahli

Good publicity is something you can'tbuy. Law firms of all sizes are realizingthis and, more than ever before, are will-ing to incorporate public relations intotheir business development and marketingobjectives. Given today’s economy, wherefirms are scrutinizing every dollar spenton business development budgets, lookingfor shortcuts may be cost effective in theshort-term but, in the long-term, opportu-nities will be missed and mistakes made.One of the best ways to gain publicity is

through an interview with the media. Yetlawyers must remember that they don’t con-trol when and how the story will look oncethe editing process is completed. They can,however, control the press interview itself.For the interview to be a win-win, thelawyer has to relay that information effec-tively. Even experienced professionals fear‘gotcha’ questions, not knowing enoughabout the subject matter or possibly freezingbefore the camera. But, in reality, reporterstend to be generalists who seek crediblesources because they add credibility to theirreporting. Therefore, as long as you are pre-pared you can answer all the questions withconfidence and express yourself effectively.

Here is a checklist of tips to improveinterviews:

• Do your homework. When it comes topreparing for media interviews, knowing thepublication’s name alone won’t cut it. Tomake a good impression, lawyers should befamiliarwith the finer points of the publicationas well, including the audience of the publica-tion and the reporter’s background, tone andstyle. Ultimately, you want the reporter tocome back to your firm as a source.

• Simplify. Hone your messages to a fewkey points. Remember, very little of theinterview will probably be used. Therefore,be clear on what you want to communicate.

• Lawyers should make every effort toanswer every question. Avoid using suchphrases as "no comment." Answer everyquestion or you will seem evasive. If thereis a legitimate reason for not answering aquestion, simply state that you cannotanswer it and give the reason. Remember,however, that nothing is off the record.Never say anything you would not want tobe quoted on. Those quotes are usually justthe juicy tidbits that will end up in print.

• Flag key points. When speaking, letthe reporter know you’re about to makekey points by flagging it with a phrasesuch as, "The key point is ..." or "It’s crit-ical to remember..." This helps ensure thatthe reporter is prepared for you to saysomething important, thereby ensuringhe/she will not miss your key points.• Use bridges to take control of the inter-

view. Depending on the nature of the story,it is likely that a reporter will ask you apotentially thorny question. Lawyersshould answer it, but bridge it to a messageyou want to convey. For example, "Yes, buthave you considered…?" or "No, but we'vemanaged to solve that problem by..."

• Use metaphors. This can get trickysince lawyers are used to conveying onlyfacts. Lawyers need to understand that peo-ple relate more to stories than to the facts.Avoid using legal jargon; the purpose is notto impress the reporter with your‘legalease’ but rather, to convey informa-tion that is understood by the readers.Metaphors, stories and anecdotes all help toillustrate and simplify message points.

• Be interesting. If you are passionate aboutyour subject, it will help make a better story.

• Be ready to go off topic. During the inter-view, do not be surprised if a reporter askssomething totally unrelated to the subject athand, but still involved in your industry.

• Avoid jargon. When speaking withreporters or the lay public, avoid the useof industry jargon and acronyms.

Further, offer to help the reporter once theinterview is complete. Oftentimes, once edi-tors read the stories, they have questions andreporters have to reach out to their originalsources for clarification or more information.Finally, remember it is NOT the

reporter’s job to make the lawyer and firmput their best foot forward. Due diligence isthe responsibility of the law firm’s publicrelations professionals. The more plannedand prepared you are, the less the risk thereis of being misquoted. If you’re startingyour public relations initiatives, join theLegal PR Network for FREE by logging onto www.profitingwithpublicrelations.com.

Ms. Mahli is with The RainmakersRoundtable, a source of business develop-ment for lawyers and professionals who nolonger want to experience the cycles of feastor famine and are ready to grow their busi-nesses with clarity and ease. Her emailaddress is [email protected].


Reprinted with permission from the September 9, 2011 edition of the NEWYORK LAW JOURNAL © 2011 ALM Media Properties, LLC.

Public PolicyDevelopments

September 19, 2011 – The NYCLABoard of Directors approved the ElectionLaw Committee Report endorsing, with anamendment, the New York City Bar’sElection Law’s report, ”Proposal for aFiling Fee Alternative for Ballot Access,”calling for the adoption of a filing-fee alter-native to the designating or nominating peti-tion requirement for placement on the elec-tion ballot. NYCLA’s Election LawCommittee Chair Harry Kresky noted that26 states have such an alternative and thatthe filing-fee alternative would enhancedemocracy and save time and money forboth the candidates who face challengesand for the Board of Elections that handlesthe challenges.September 26, 2011 – NYCLA

President Stewart D. Aaron submits writ-ten testimony to the Chief Judge’sHearing on Civil Legal Services, restat-ing NYCLA’s support for a funded rightto counsel – civil Gideon.To read the complete text of Board

reports and resolutions, testimonies,statements and letters and other publicpolicy documents, log on towww.nycla.org and click on News &Publications, and then on the appro-priate category.

Preparing for Media InterviewsPress interviews require poise, confidence and planning.

Find out how to make yours run more smoothly with these tips.


On September 16, Hon.Stephen G. Crane (ret.)received the Jack NewtonLerner Award forOutstanding Contributionsto Continuing LegalEducation at a luncheonheld in conjunction withthe 2011 Jack NewtonLerner Landlord TenantInstitute. Justice Cranewas recognized for thesignificant role he hasplayed to ensure qualityCLE programming.Justice Crane (top photo),who was the SeniorAssociate Justice of theAppellate Division,Second Department,posed with his family afteraccepting the award.Justice Crane co-chairs

several NYCLAcommittees– the Task Force on JudicialBudget Cuts, Committee onCLE and the seminal ArtLitigation and DisputeResolution Institute, now inits fourth year – and hasbeen a speaker/moderator atcountless CLE programsthroughout the year.Mrs. Evelyn Lerner (in

the photo at right), widowof longtime NYCLAmember Jack Newton

Lerner, is surrounded byher family at the presenta-tion of the Jack Newton

Lerner Award forOutstanding Contributionsto CLE.

RECENT EVENTS

On September 12, in com-memoration of the tenthanniversary of September 11,NYCLA hosted a members-only screening of a documen-tary, Out of the Ashes: 9/11.Introductory remarks weremade by (from left to right):Manhattan District AttorneyCyrus R. Vance Jr.; the film’swriter, co-director and pro-ducer, Marilyn Berger, a pro-fessor at Seattle UniversitySchool of Law and director ofthe Films for Justice Institute;and NYCLA President Stewart D.Aaron. The documentary profiles seven9/11 families and provides an unprece-dented glimpse of the impact that thelargest entitlement program to date, the9/11 Victim Compensation Fund, hadwhen it distributed $7 billion to over5,500 families. Following the screen-ing, Professor Berger and four attor-neys who represented victims’ familiesled a question-and-answer session.

Professor Berger is touring with thefilm – introducing issues addressed inthe film: environmental concerns, theimplications of a Fund for settlementin mass torts, impact on the civil jus-tice system and advocacy issues ofgrief-stricken victims. Proceeds of thenonprofit film are donated to charities.The film is available for purchase by

individuals, educational institutionsand law firms. For more information,visit the website: http://bit.ly/oBOdcE

Justice Stephen G. Crane Receives Jack Newton Lerner Award NYCLA Commemorates Tenth Anniversary of September 11th

NYCLA Co-Sponsors CLE Program onUsing Affidavits In Lieu of Direct Testimony at Trial

On September 20, NYCLA co-sponsored a first-of-its-kind CLEprogram on the use of affidavits inlieu of direct testimony at (bench)trial. The New York State–FederalJudicial Council and the SecondCircuit Judicial Council also co-sponsored the free program, whichdrew over 500 registrants. The pro-gram took place in the CeremonialCourtroom of the Daniel PatrickMoynihan United StatesCourthouse.In a report of its Task Force on the

Family Court, NYCLA recommend-ed that a pilot program in the use ofaffidavits instead of direct testimonytake place in New York’s intenselybusy Family Court. It is already inplace in the Commercial Division ofthe New York State Supreme Court

and it is prevalent in federal courts.The panelists were: Hon. Richard

M. Berman, U.S. District Court forthe Southern District of New York,a member of the Task Force on theFamily Court and program organiz-er; Hon. Laura E. Drager, NewYork State Supreme Court, CivilBranch, New York County; Hon.Douglas E. Hoffman, New YorkState Family Court (Manhattan);Susan Bender, Esq., BenderRosenthal Isaacs & Richter LLPand past President of the Women’sBar Association of the State of NewYork; and John J. Kerr, Esq.,Simpson Thacher & Bartlett LLP.Professor Jane Spinak of ColumbiaLaw School, a co-chair ofNYCLA’s Task Force on the FamilyCourt, served as moderator.

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NYCLA’s Annual Dinner Celebrating LegalCompliance and Enforcement

Tuesday, December 13, 2011Waldorf Astoria HotelReception: 6:30pmDinner: 7:30pm

HonoreesWilliam Nelson Cromwell Award

Mary Jo White, Partner, Debevoise & Plimpton LLP, former U.S. Attorney, SDNY

Chief Compliance Officers from the Following Corporations(list in formation)

American International Group, Inc.Angelo, Gordon & Co.

Apollo Global Management, LLCArrow Electronics, Inc.

Brown Brothers Harriman & Co.IDB Bank

Marsh & McLennan Companies, Inc.MasterCardPershing LLC

Prudential Financial, Inc.RBS Securities, Inc.

Standard & Poor’s, LLCTIAA-CREF

Transatlantic Reinsurance Company

Boris Kostelanetz President’s Medal HonoreeRosalind S. Fink, Of Counsel, Brill & Meisel, former NYCLA President

Annual Dinner Co-Chairs

To participate, contact Christina Andujar at [email protected]

Sheila L. BirnbaumDon D. BuchwaldZachary W. Carter

Robert L. HaigDavid N. KelleySara E. Moss

Bart M. SchwartzRichard H. WalkerStephen P. Younger


To make suggestions about book, e-book ordatabase purchases, please contact AnnaSmallen or Dan Jordan by email at [email protected] or [email protected] or byphone at 212-267-6646 ext. 204.

Featured Internet Site

New York Law School’s DRAGNET:Searching Free Databases(www.nyls.edu/library/research_tools_and_sources/dragnet)Assistant Director of Technical Services for

Library Systems at New York Law SchoolTerry Ballard wanted to enable library users toget basic information on a legal topic so thatthey could start a research project without hav-ing to spend a lot of time searching for relevantinformation sources. He.experimented withGoogle Custom Search and used it to allowresearchers to do free, simultaneous searchesof 80 reliable legal websites that can also besearched individually. He created DRAG-NET, an acronym for “Database RetrievalAccess using Google’s New ElectronicTechnology.” You can search for a topic andchoose tabs to access all recent New York orNew Jersey federal or international legalsources and get up to 100 hits in a few secondsby clicking on each tab. New York and NewJersey sources include the: New York StateUnified Court System, NewYork State Senate(www.nysenate.gov/) and Assembly (assem-bly.state.ny.us), New York City Council( w w w . c o u n c i l . n y c . g o v / h t m l / -home/home.shtml), New Jersey Digital LawProject (njlegallib.rutgers.edu/help/about.php)and the New Jersey Legislature(www.njleg.state.nj.us). In addition, Justia(www.justia.com), the Government Attic(governmentattic.org/), the United StatesGovernment Printing Office (www.gpoac-cess.gov/), U.S. Supreme Court, Media Site(www.oyez.org), the Law Library of Congress(www.loc.gov/law) and many other websitesare troves of federal information. The web-master of DRAGNET has provided manysources of information about international law,such as theWorld Legal Information Institute,Electronic Institute for International Law,Hieros Gamos, Human Rights Library, theUnited Nations and the South African LegalInformation Institute.In order to conduct searches of the federal

government and the constitutions, statutes andadministrative codes of all 50 states, a com-mittee at NewYork Law School added anoth-er search engine, called DRAGNET:Constitutions and Codes.You can restrict yoursearch to NewYork and New Jersey legislativeand administrative materials. If you would liketo search 150 law reviews that are availablefree to the public, try Law Reviews withOnline Content. The law reviews that the sitecontains include: Gonzaga Journal ofInternational Law, Journal of Law andHealth,Northwestern Journal of Technology andIntellectual Property andCornell Law Review.There are search tabs for recent articles aboutenvironmental and international law. Red dotsnext to the title of a publication indicate thatthey are newly published articles. Users havethe option of searching Local and Most-CitedLaw Reviews Online, such as Columbia LawReview, Vanderbilt Law Review and theUniversity of Chicago Law Review at onetime. Results can be filtered by tabs to locateonly local ormost-cited law reviews chosen byWashington and Lee University. DRAGNETis the winner of the American Association ofLaw Librarians’ 2011 award for library non-print publications.

New Editions

Fair Debt Collection, 7th edition (NationalConsumer Law Center).New York Construction Law Manual, 2011edition (ThomsonWest).

PeriodicalsBuilding Manager’s Neglected Clogged RoofDrain, Tenant Alleged: Verdict $7,143,004,VERDICTSEARCH New York (August 8,2011).Car Crash Caused Back, Knee Neck Injuries,Plaintiff Alleged: Verdict $1,324,500, VER-DICTSEARCH: NewYork (July 25, 2011).Court Rules Restrict Motions in Limine,Litigation: New York Law Journal SpecialSection, New York Law Journal (August 15,2011).Don’t Collect Bedbug ExterminationSurcharge, New York Landlord v. Tenant (July2011).Sentencing and Hearsay Cases HighlightTerm, Court ofAppeals andAppellate PracticeAlert, NewYork Law Journal Special Section,NewYork Law Journal (August 22, 2011).

ELECTRONIC RESEARCH CENTERCLE PROGRAMS

October

Westlaw: AdvancedTuesday, October 1810:00 - 11:00 AM1 MCLE Credit: 1 Skills; TransitionalMember: FreeNon-Member: Free

Westlaw: Intellectual PropertyTuesday, October 1811:30 AM - 12:30 PM1 MCLE Credit: 1 Skills; TransitionalMember: FreeNon-Member: Free

U.S. Bankruptcy Court Electronic CaseFiling SystemWednesday, October 1910:00 AM – 12:30 PM2.5 MCLE Credits: 2.5 Skills; TransitionalMember: $65 Non-member: $85 Non-legal Staff: $35

Using Bloomberglaw.com for LitigationThursday, October 2010:00 - 10:50 AM1 MCLE Credit: 1 Skills; TransitionalMember: FreeNon-Member: Free

Using Bloomberglaw.com for a CorporateTransactional PracticeThursday, October 2011:05 - 11:55 AM1 MCLE Credit: 1 Skills; TransitionalMember: FreeNon-Member: Free

November

Westlaw: BasicThursday, November 31:30 - 2:30 PM1 MCLE Credit: 1 Skills; TransitionalMember: FreeNon-Member: Free

Westlaw: NewYork MaterialsThursday, November 33:00 - 4:00 PM1 MCLE Credit: 1 Skills; TransitionalMember: Free Non-Member: Free

Lexis: IWednesday, November 910:30 - 11:30 AM1 MCLE Credit: 1 Skills; TransitionalMember: FreeNon-Member: Free

Lexis: Lexis for Microsoft OfficeWednesday, November 912:00 - 1:00 PM1 MCLE Credit: 1 Skills; TransitionalMember: FreeNon-Member: Free

Lexis: Expert Witness SearchingWednesday, November 91:30 - 2:30 PM1 MCLE Credit: 1 Skills; TransitionalMember: FreeNon-Member: Free

Westlaw: IntermediateTuesday, November 1510:00 - 11:00 AM1 MCLE Credit: 1 Skills; TransitionalMember: FreeNon-Member: Free

Westlaw: BankruptcyTuesday, November 1511:30AM - 12:30 PM1 MCLE Credit: 1 Skills; TransitionalMember: FreeNon-Member: Free

U.S. Bankruptcy Court Electronic CaseFiling SystemWednesday, November 1610:00 AM-12:30 PM2.5 MCLE Credits: 2.5 Skills; TransitionalMember: $65 Non-member: $85 Non-legal Staff: $35

Using Bloomberglaw.com for LitigationThursday, November 1710:00 - 10:50 AM1 MCLE Credit: 1 Skills; TransitionalMember: FreeNon-Member: Free

Using Bloomberglaw.com for a CorporateTransactional PracticeThursday, November 1711:05 - 11:55 AM1 MCLE Credit: 1 Skills; TransitionalMember: Free Non-Member: Free

Library Notes

2011 Attorneys’ Guide to Civil Practicein the New York County Supreme Court

Purchase the only publication that out-lines procedures followed in the SupremeCourt of New York County, along withproviding Part information and biogra-phies of the Justices who sit there.Highlights include:• Commencing a Lawsuit• Assignments and Case Processingunder CCJP• Motion Practice

• Back Office and Major CountyClerk OperationsPricing:$50 for NYCLA Members$100 for non NYCLA MembersView Table of Contents and order nowhttp://bit.ly/rmNHjwQuestions? [email protected] call 212-267-6646 ext. 208

Reviewed by Phil Schatz

The Honorable Harold BaerJr., a sitting United StatesDistrict Court Judge for theSouthern District of New York,has had a long and distinguishedcareer of public service. To hisimpressive list of accomplish-ments can be added the compactbook Judges Under Fire: HumanRights, Independent Judges, andthe Rule of Law.Judges Under Fire is a timely judge’s-eye

view of various threats to judicial independ-ence, in short vignettes that span the cen-turies and the globe, from colonial Americato modern-day China. The threats includearistocratic power (the forceful removal oftenants from the Scottish Highlands), exec-utive greed (Colonial NewYork’s GovernorCosby), totalitarian rulers (Hitler’s“People’s Court” and others), incompetenceand corruption (modern China), politicalupheaval (Pakistan and Serbia) and media-fueled political attacks (1990s USA), ofwhich Judge Baer himself was the victim.One might quibble with a few of the selec-tions (for example, the judge’s performancein the trial following the HighlandClearances was probably not central to theacquittal), but Judge Baer’s passionatebelief in the importance of an independentjudiciary is compelling and worth reading.As Judge Baer explains, an independent

judiciary is an essential protection againstall forms of tyranny, whatever the source.The legal system depends upon somemeasure of insulation from external forces.A judiciary that can be cowered or swayedby external influences – power, money,majoritarian passion – cannot adhere to the

rule of law and issue opinionsthat, over the long term, will berespected and followed. A lackof faith in the judicial systemcan disrupt the whole machineryof government. Our country’sfounders, particularly AlexanderHamilton, saw the centralimportance of an independentjudiciary and enshrined it inArticle III, Sec. 1 of ourConstitution – what Judge Baer

labels “probably our greatest constitutionalprinciple.”Although Judge Baer is optimistic about

the future of the American judiciary, henotes that judicial independence is con-stantly under attack. The prerequisites foran independent judiciary include suchthings as a transparent selection process,adequate pay, protection against arbitraryremoval and the power to enforce individ-ual rights and freedoms. These prerequi-sites are difficult to obtain in societieswithout our tradition of judicial independ-ence and are increasingly problematic evenin the United States, as the intemperateattacks upon him demonstrated. JudgeBaer’s prescription for the continued vital-ity of the principle of judicial independ-ence includes the involvement of a coura-geous and independent body of lawyers toprotect the principle at home and to publi-cize and expand appreciation of the princi-ple abroad. Judge Baer’s book providesinvaluable assistance to lawyers and inter-ested laypersons seeking to get involved inthe defense of this cornerstone of liberty.

Mr. Schatz is a partner at Wrobel &Schatz LLP, a business litigation firm inNew York City.

B O O K R E V I EW

Judges Under Fire: Human Rights,Independent Judges, and the Rule of LawBy Hon. Harold Baer Jr. (ABA Publishing, 2011)


Committee Connection

Message fromRichard B. Friedman,Co-Chair

I am pleased that my goodfriend, Jordan D. Kanfer, seniorvice president and generalcounsel, T-Systems NorthAmerica, Inc., and I are co-chairing NYCLA’s newest com-mittee, the In-House/OutsideCounsel Committee.

The Committee is holding itsorganizational meeting onTuesday, October 25 at 6:30pm, in room 6 on the 4th floor.We will adjourn no later than8:00 p.m. All NYCLA membersare welcome to join theCommittee. I expect that we willform subcommittees basedupon subject matters that weidentify during the organization-al meeting.

Richard B. Friedman, Partner,McKenna Long & Aldridge LLP

First Meeting of NYCLA’sIn-House/OutsideCounsel CommitteeSet for October 25

2011NewYork CityCriminal Courts

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Construction Law Committee JournalNYCLA’s Construction Law Committee has just published its third journal,

which covers a wide range of topics, including: construction financing, constructionbonds a bond liability, labor law, mechanics’ liens and contract forms. CommitteeChair Joel Sciascia, Vice Chair and Journal Managing Editor Ariel Weinstock andEditor-in-Chief Gary Strong encourage NYCLA members to join the Committeeand submit articles that would be of interest to lawyers practicing in the area of con-struction law. The fall 2011 Journal can be downloaded from NYCLA’s homepage;visit https://www.nycla.org/siteFiles/constructionlawjournal_376.pdf.

NYCLA’s Public Service Awards ReceptionNYCLA held its 21st annual public serv-

ice awards reception on September 27, hon-oring seven attorneys for their outstandingrecord of public service. Hon. CarmenBeauchamp Ciparick,Senior Associate Judge ofthe New York State Courtof Appeals, was thekeynote speaker. In addi-tion, NYCLA’s CriminalJustice Section presentedtwo attorneys with the2011 Criminal JusticeFellowship, an awardbased on an essay compe-tition. This year, thanks tothe revenue from the NewYork County CriminalJustice Manual, eachFellowship winnerreceived $2,500.The public service

award recipients’ public service careersepitomize their commitment and dedica-tion to ensure that all people – the poor;elderly; minorities, children, mentally andphysically handicapped – have equalaccess to legal representation.

Pictured above (from left to right) are:NYCLA Criminal Justice Section co-chairs Keith Schmidt and AlisonWilkey, who presented the 2011 CriminalJustice Public Service Fellowships toManhattan Assistant District Attorney

Matthew C. Williams, and Mark Son,staff attorney, The Legal Aid Society.With them is NYCLA President StewartD. Aaron.

Pictured above (from left to right) are:honorees Tanya Douglas, director,Disabilities Advocacy Project, ManhattanLegal Services;WilliamD. Gibney, direc-tor, special litigation unit, criminal prac-tice, The Legal Aid Society; Jane

Greengold Stevens, direc-tor, litigation, New YorkLegal Assistance Group;Rebecca C. Martin,deputy chief, civil fraudsunit, Southern District U.S.Attorney’s Office; Alan W.Sputz, deputy divisionchief, Family CourtDivision, Law Department;and Barbara Zolot, seniorsupervising attorney, Centerfor Appellate Litigation.With them are Court ofAppeals Judge CarmenBeauchamp Ciparick andNYCLA Past President

Catherine A. Christian, chair of thepublic service awards committee.Another honoree, Marvin Bernstein,director of Mental Hygiene LegalServices, First Department, is not pic-tured.

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On September 27, two attorneys work-ing in the public sector, Mark Son, a staffattorney at The Legal Aid Society, andMatthew C. Williams, an assistant districtattorney in the Appeals Bureau of theNew York County District Attorney’sOffice, won the Criminal JusticeSection’s (CJS) Public ServiceFellowship Essay Contest. Thanks to pro-ceeds from the sale of the Section’s NewYork County Criminal Courts Manualand donor contributions, CJS Co-ChairsKeith Schmidt and Alison Wilkey pre-sented each winner with $2,500. Theessay topic was: “What should be the roleof the prosecutor and the judge in light ofPadilla v. Kentucky?”

Envisioning an Active Role byProsecutors and Judges after

Padilla v. Kentucky

By Mark Son

Jose Padillas are abundant in NewYork’s criminal justice system. AnEcuadorian citizen who lived in the UnitedStates for forty years, Padilla was chargedin 2001 with using his truck to transportmarijuana – a crime that renders non-U.S.citizens mandatorily deportable. Padillanonetheless pled guilty, relying on hislawyer’s incorrect advice that doing sowould not result in his deportation.On Padilla’s appeal, the Supreme Court

grappled with the meaning of the constitu-tional standard for competent legal repre-sentation in the context of noncitizen crim-inal defendants, holding that the adviceprovided by Padilla’s lawyer fell below theminimum Sixth Amendment threshold.Read in its narrowest light, the holding inPadilla v. Kentucky requires criminaldefense counsel to provide accurate immi-gration advice to defendants facing depor-tation, but imposes no such obligation onprosecutors or judges. However, this con-struction disregards the fundamentalpremise of the Court’s analysis. The abili-ty to remain in the country is often themost important concern for non-citizendefendants and, as such, immigration con-sequences are hardly “collateral.” It fol-lows that all participants in the criminaljustice system, including prosecutors andcourts, bear responsibility for ensuringthat plea negotiations involve full and ade-quate consideration of immigration conse-quences.

The Responsibility of Prosecutors

Padilla’s call for intelligent and mean-ingful plea negotiations requires both theprosecutor and the defense attorney to befully aware of significant immigrationconsequences. The majority in Padillaemphasized that “informed considerationof possible deportation can only benefitboth the State and noncitizen defendantsduring the plea-bargaining process”(emphasis added). The Court noted thatthe informed plea bargain will enable thedefendant to plead guilty to a charge thatwill reduce the likelihood of removal, andthe prosecutor benefits by having a defen-dant who has a strong incentive to take aplea. More importantly, informed plea bar-gaining goes to the heart of a prosecutor’s

“responsibility . . . to seek justice, notmerely to convict.” See New YorkLawyer’s Code of ProfessionalResponsibility 7-13. Justice requires that apunishment reflect not only the severity ofthe crime, but also mitigating circum-stances and consideration for the conse-quences of a plea, including immigrationconsequences.To fulfill their duty, prosecutors must

receive training and continuing educationso that they can fully appreciate immigra-tion consequences. The training shouldaim not only to inform prosecutors aboutimmigration laws, but also to increaseprosecutors’ sensitivity to the harsh real-world effects of those laws on defen-dants. Among the common refrainsoffered by prosecutors in response todefense counsel’s efforts to inject immi-gration issues into plea bargaining are:“that is not fair to citizen defendants,”“immigration status is not a mitigatingcircumstance,” and “the penalty mustreflect the nature of the crime.” Suchresponses ignore the profound immigra-tion consequences of convictions thatparticipants in the criminal justice systemreflexively regard as minor. For instance,while a guilty plea to a marijuana viola-tion under Penal Law § 221.05 may notbe serious enough to warrant jail time, itcan make the defendant inadmissibleunder Immigration and Nationality Act §212(a)(2). In such a circumstance, aninformed and a sensitive prosecutor mayoffer a disorderly conduct violation inlieu of the marijuana violation.In addition to providing necessary train-

ing, prosecutors’ offices should engageimmigration specialists to assist their staffsin making informed decisions during pleanegotiations. As the Padilla Court noted,“[i]mmigration law can be complex, and itis a legal specialty of its own.”Immigration specialists can help prosecu-tors navigate the various nuances and fre-quent developments in immigration laws.Without this resource, circumstances mayarise where prosecutors hesitate to acceptdefense counsel’s representations of immi-gration consequences, to the detriment ofdefendants and the cause of justice.

The Role of Judges

The court’s role after Padilla should betwofold: (1) ensuring that noncitizendefendants have received adequate immi-gration advice prior to accepting guiltypleas and (2) considering the special cir-cumstances of noncitizen defendants whenimposing sentence after trial.Prior to accepting a guilty plea, the court

should ascertain that the defendant is fullyaware of the immigration consequences.New York’s Criminal Procedure Law §220.50(7) requires that trial courts advisedefendants of possible immigration conse-quences in felony cases. In light of Padilla,the statute must be broadened to includemisdemeanor cases since many misde-meanor crimes carry serious immigrationconsequences, including deportation. As amatter of practice, many judges inManhattan criminal court ask defense attor-neys whether they have advised theirclients of immigration consequences priorto accepting a misdemeanor plea. Thisprompts many attorneys to turn their heads

to ascertain the citizenship status of theirclients. Courts across New York shouldadopt this practice, as it not only benefitsthe defendant but also helps with judicialeconomy by preventing unnecessaryappeals. The best way to assure consistentapplication of this practice is to amend thestatute.Furthermore, C.P.L. §220.50(7) should

be amended to make the court’s failure toadvise defendants of immigration conse-quences a valid basis for appeal. Thestatute currently states, “[t]he failure toadvise the defendant pursuant to this sub-division shall not be deemed to affect thevoluntariness of a plea of guilty or thevalidity of a conviction, nor shall it afforda defendant any rights in a subsequent pro-ceeding relating to such defendant’s depor-tation, exclusion or denial of naturaliza-tion.” The clear holding of Padilla is that adefendant who takes a plea without fullyknowing immigration consequenceslacked competent legal representation. Itfollows that an unknowing plea can be nei-ther a voluntary nor a valid plea. Includingcourts’ failure to advise defendants ofimmigration consequences as a validground for appeal will incentivize courtsproperly.Courts can also play a constructive role

by providing information about immigra-tion laws to defense attorneys in solo or

small-firm practices, who handle a sub-stantial portion of criminal cases in NewYork. As discussed above, immigrationlaw is among the most complicated areasin our legal system. One way to ensurethat solo and small-firm practitioners canaccess competent guidance when the rulesare not “succinct or straightforward” is toset up an immigration law hotline for theiruse. While one might argue that this taskfalls outside the role of the court and liesmore in the purview of bar associations, itcan easily be seen as an extension of thecourt’s role as set forth by C.P.L. §220.50(7) or as part of its duty to assurecompetent legal representation to indigentcriminal defendants under Gideon v.Wainwright.Finally, courts should be sensitive to the

unique circumstances of noncitizen defen-dants when considering sentences. Forinstance, if a defendant is convicted aftertrial and the judge is contemplating sen-tencing the defendant to a year in jail, sen-tencing him to 364 days instead of 365days can save the defendant from beingfound to have committed an aggravatedfelony under the immigration laws. Anaggravated felony makes a noncitizendeportable and ineligible for most formsof relief from deportation. Court sensitiveto immigration consequences can also

Criminal Justice Section’s Public ServiceFellowships Winners

(See Essay Winners on Page 15)


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employ C.P.L. § 216.05(4)(b), which in“exceptional circumstance[s]” allowsdefendants to be sentenced to substanceabuse treatment without entering a guiltyplea. Applying C.P.L. § 216.05(4)(b) inthis manner is consistent with Padilla’smandate, broadly construed, that partici-pants in the criminal justice system musttake immigration consequences intoaccount when contemplating appropriatepunishment.This essay examined the role that pros-

ecutors and courts should play in light ofPadilla v. Kentucky. In order to bettercomport with the holding in Padilla, thisessay suggested that prosecutors receiveadequate training on immigration, engagethe resource of an immigration specialist,and factor immigration consequences inmaking plea negotiations. Furthermore,courts must ensure that intelligent andknowing plea negotiations take place, and

remain sensitive to the harsh results ofimmigration laws. With these changes, wewill be a step closer to preventing futureJose Padillas who unwittingly enter pleasthat accompany profound immigrationconsequences.

The Unspoken Meaning ofPadilla v. Kentucky for Prosecutors

and Trial Judges

By Matthew C. Williams

In Padilla v. Kentucky, the United StatesSupreme Court made clear that defenseattorneys are required to advise their clientsabout potential adverse immigration conse-quences of a guilty plea. After Padilla, inthe absence of such advice, a defense attor-ney’s representation of a client facingdeportation due to that conviction will like-ly be deemed deficient under the first prongof the federal standard for ineffective assis-tance of counsel.While the Supreme Court in Padilla

dealt with the duty of a defense attorney to

provide advice concerning the immigra-tion consequences of a guilty plea, theCourt did not have the occasion to addresswhether lower-court judges or prosecutorswere under any similar duty. There is rea-son to believe that, as a purely legal mat-ter, the Supreme Court would decline toimpose such a duty on a court and prose-cutor. As for the prosecutor, our criminaljustice system is an adversarial one, andany requirements that the prosecutor pro-vide legal advice to a defendant should beavoided. Rather, the onus to provide accu-rate legal advice is best placed on thedefense attorney, whose focus is the bestinterest of his client. And, as for lower-court judges, while it may be incumbentupon a court to ensure that a defendantenters his guilty plea voluntarily andknowingly, that requirement is typicallyunderstood to mean only that a court mustensure that a defendant understands thedirect, as opposed to collateral, conse-quences of his plea. In Padilla, however,the Supreme Court studiously avoidedcalling deportation a direct consequence ofa guilty plea, instead simply stating thatthe question of whether an attorney’sadvice to a defendant was deficient did notturn on a distinction between direct andcollateral consequences. Thus, at the veryleast, it is far from clear that lower courtsare under any legal duty to advise defen-dants about immigration consequences ofguilty pleas.But irrespective of whether a court or a

prosecutor is under a legal duty to informa defendant of the immigration conse-quences of his plea, it is clear that as apractical matter, it is in the best interest ofboth the prosecutor and the court to ensureat a plea allocution that a defendant iswarned of those possible consequences. Inthat regard, the decision in Padilla waslimited to the question of whether adefense attorney’s representation may bedeemed deficient if the attorney failed toproperly advise a client about immigrationconsequences of a plea. However, Padillamade clear that the standard of review ofclaims of ineffective assistance of counselestablished by the Supreme Court inStrickland v. Washington applies to a claimthat a defense attorney failed to adequate-ly provide immigration advice. And, forrelief under Strickland, a defendant notonly must establish that his attorney’s rep-resentation was deficient, but that he wasprejudiced by that deficiency. In otherwords, to obtain relief on a claim concern-

ing counsel’s failure to adequately provideimmigration advice, a defendant wouldhave to show that, but for his attorney’sfailure to properly render that advice, hewould not have pled guilty and insteadwould have proceeded to trial.The prejudice prong of the Strickland

standard provides the prosecutor and thecourt an opportunity to, in effect, fore-close future claims of ineffective assis-tance of counsel by ensuring, on therecord of a plea proceeding, that a defen-dant understands any potential immigra-tion consequences of his plea. After all, ifa criminal defendant is warned at a pleaproceeding about those consequences;affirms his understanding of them; andnevertheless pleads guilty, he will not beable to credibly claim in the future thathad he only known of those potential con-sequences he would not have pled guilty.Thus, his claim can be rejected under theprejudice prong of Strickland.The ability to foreclose those types of

claims is highly valuable. The represen-tation prong of ineffectiveness claimspertaining to the advice provided by anattorney before a plea can be especiallyhard to litigate. Often, the defendant andhis plea counsel will be the only two wit-nesses that can provide information aboutthe nature of the advice given to defen-dant. And, given the number of caseshandled by defense attorneys, and espe-cially public defenders, the attorneysthemselves may not even be able to recallwhat advice was given in a particularcase. Thus, the potential difficulties oflitigating such claims are far from trivial.By simply ensuring during the plea allo-cution that defendants understand thatpotential immigration consequences mayflow from their plea, prosecutors andcourts may avoid those difficulties, andinstead be able to quickly sustain a defen-dant’s conviction under the prejudiceprong of Strickland.In short, the Supreme Court in Padilla

may not have explicitly imposed anyduties on prosecutors or judges to ensurethat defendants are informed of immigra-tion consequences of their pleas. Indeed,there is reason to believe that the SupremeCourt may never do so. Nevertheless,there can be little doubt that prosecutorsand judges would be best served by actingas if Padilla had imposed just such a dutyon them. That minimal investment willsave them much time and many headachesdown the road.

NYCLA DUES ARE TAX DEDUCTIBLENYCLA is a qualified tax-exempt organization under Section 501 (c) (3) of the

Internal Revenue Code and is not affected by the provisions in the RevenueReconciliation Act of 1993 dealing with lobbying and political expenditures.

Date of filing: Sept. 30, 2011Title of publication: New York County LawyerPublication number: 1558-5786Frequency of publication: Monthly, exceptFebruary and AugustLocation of known office of publication: 14Vesey Street, New York, NY 10007-2992Location of headquarters or general businessof publishers: 149 Main Street, Huntington,NY 11743Name of Publisher: Long Islander, LLC, 149Main Street, Huntington, NY 11743Editor: Anita Aboulafia, 14 Vesey Street, NewYork, NY 10007-2992Managing Editor: Marilyn J. Flood, 14 VeseyStreet, New York, NY 10007-2992The owner is: New York County Lawyers’Association, 14 Vesey Street, New York, NY10007-2992Average No. of Copies Each Issue During thePreceding 12 Months:Total No. Copies Printed (Net Press Run):9,467Paid In-County Distribution: Mail PeriodicalsSubscription: 5,585Paid Out-of-County Circulation: Mail

Periodicals Subscription: 3,557Total Paid Distribution: 9142Free Distribution (including Samples) by Mail,Carrier or Other Means: 300Copies Not Distributed: 25Total Distribution: 9,467Total Equals Net Press Run Shown in A

No. Copies of Single Issues PublishedNearest to Filing Date (Sept. 2011)Total No. Copies Printed (Net Press Run):9,580Paid In-County Circulation: Mail PeriodicalsSubscription: 5,625Paid Out-of-County Circulation: MailPeriodicals Subscription: 3,580Total Paid Circulation: 9,205Free Distribution (including Samples) Carrieror Other Means: 300Copies Not Distributed: 25Total Equals Net Press Run Shown in A:9,580I certify that the statements made by meabove are correct and complete.Peter Sloggatt 9/30/11

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Essay Winners(Continued from Page 13)

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