When a hurricane, warehouse fire, terrorist attack, or other disaster destroys client files, attorneys face the difficult question of how to communicate the loss to clients. Until recently, most ethics guidance on this topic focused on what lawyers can do ahead of time to reduce the risk of loss. Now, a new ethics opinion (Formal Opinion 2015-6) by the New York City Bar Association’s Committee on Professional Ethics offers guidance on what lawyers should do after client files are inadvertently destroyed.

The Duty to Preserve Client Files.

Lawyers have a fiduciary duty to preserve and safeguard property they hold for clients and former clients. Under New York case law, clients have a property interest in—or, at minimum, free access to—most documents or other materials relating to their matters. The duty to preserve client files may continue for at least some period of time after the representation ends, depending on the circumstances. Accordingly, a lawyer may have a duty to notify clients or former clients when their files are destroyed in a disaster.

The Duty to Notify.

Whether an attorney must notify a client about destroyed files depends on various factors, including what types of documents were destroyed, whether the matter is open or closed, and what types of communications the lawyer previously had with the client concerning disposition of the files.

The opinion sets forth a three-tier framework for categorizing client files. Category 1 consists of documents with “intrinsic value or those that directly affect property rights,” such as “wills, deeds and negotiable instruments.” Category 2 consists of documents that the lawyer “knows or should know may still be necessary or useful to the client.” Category 3 consists of documents with relatively little importance that would “furnish no useful purpose in serving the client’s present needs for legal advice.”

The new opinion concludes that a lawyer should notify a client or former client if Category 1 documents are destroyed in a disaster. Conversely, a lawyer need not notify the client or former client if Category 3 documents are destroyed. Category 2 documents must be analyzed on a case-by-case basis. If the documents relate to an open matter, the opinion concludes that the lawyer must notify the client of their destruction. If the matter is closed, a more nuanced approach is required to determine whether the “client foreseeably may need” the documents. Other factors that may be relevant to a lawyer’s decision to notify include:

  • The amount of time that has passed since the matter was closed;
  • Whether the firm previously gave the client reasonable notice that the files were available to be collected or delivered and whether the client responded to such notice;
  • Whether the firm delivered copies of the files to the client at the conclusion of the matter or the client received copies of the files while the matter was ongoing;
  • Whether the firm has previously made unsuccessful attempts to contact the client;
  • Whether the contents of the file can be reconstructed from other sources.

As the opinion points out, however, “the most prudent option is to notify the client when any Category 2 documents are inadvertently destroyed.”

Though the opinion addresses a lawyer’s duties after files are already destroyed, it serves as a helpful reminder that lawyers should take steps to ensure they are adequately prepared in the event of a disaster or other disruption to everyday practice.

The opinion can be read here: http://bit.ly/1P9De2T



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Despite growing support for diversity and inclusion goals and some noteworthy progress over the past year, New York City law firms continue to experience high rates of attrition among minority and women attorneys, concludes the New York City Bar Association’s 2014 Diversity Benchmarking Report. In the 2014 data, 23.6% of minority attorneys and 21.3% of women left signatory firms, compared to 14.7% of white men.

In the Report released today, the City Bar notes gains and losses for signatory firms. While signatory firms continue to commit financial resources, staff resources, and greater accountability for firm partners towards diversity and inclusion efforts, elevated turnover rates of women and minority attorneys continue to erode progress. The 2014 survey found that minority attorney representation declined at all levels; and, though percentage of women partners peaked in 2014, women are simultaneously declining among the associate ranks.

At the leadership level, however, signatory firms saw signs of success, with women partner representation reaching the highest level since the City Bar began tracking diversity data. The data also reflected an increase in representation of women and minorities serving on management committees as well as increases in both women and minority practice group heads.

“While many firms have displayed an increased investment in diversity efforts, attrition remains a problem,” said New York City Bar Association President Debra L. Raskin. “The City Bar is working with our signatory firms to innovate strategies that increase accountability and encourage greater representation of lawyers of color, LGBT attorneys, attorneys with disabilities and women attorneys throughout the profession.”

The report’s findings, compiled from surveys of New York City law firms that signed the City Bar’s Statement of Diversity Principles, included:

  • Signatory firms continue to provide core elements to support their diversity efforts: more than 90% of firms reported the presence of a diversity council, a diversity budget, and the existence of affinity groups; and more than 50% reported that management committee members serve on the diversity committee, with 30% serving as Chair. 96% of firms reported that diversity budgets remained steady or increased in the last year, and nearly 80% of firms anticipate an increase in diversity budgets for 2015.
  • The 2014 data reflected notable gains for women in leadership roles, with the number of women partners peaking at 19.4%, and the percentage of women serving on the firms’ management committees rising from 13.5% in 2007 to 18.3% in 2014. The number of firms lacking any female representation on management committees declined from 25% in 2013 to 15% in 2014, and the number of firms reporting more than three women practice group leaders increased from 51% in 2013 to 60% in 2014.
  • The 2014 benchmarking data reflected a drop in female new partner promotions from 33.2% in 2013 to 29.2% in 2014.
  • Representation of minority attorneys fell across the board: minority associates declined from 26.9% in 2013 to 26.2%; special counsel attorneys from 12.0% in 2013 to 10.9%; and partners from 8.4% in 2013 to 8.2%.
  • Minority and women partners continue to be disproportionately represented in income partnerships, rather than equity partnerships. The turnover rate for income partners more than doubled that of equity partners, 8.3% compared to 4.0% in the 2014 results.
  • Minority attorney management committee members increased from 5.2% in 2013 to 6.4% in 2014, and practice group heads from 5.8% to 6.1%.

To date, 118 New York City firms have signed the City Bar’s Statement of Diversity Principles, committing to working toward several goals focused on enhancing the diversity of the legal profession from the pipeline to firm leadership. The data collected from signatory firms enables the legal community to track its progress in upholding the benchmarks set forth in the Statement of Principles, and also helps the City Bar identify key issues to address in their programs and reports.

The 2014 Benchmarking Report is available at: http://bit.ly/1Jq9s2u


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New York City Bar Association President Debra L. Raskin testified today at New York State Chief Judge Jonathan Lippman’s Hearing on Civil Legal Services. The hearing took place at the Appellate Division, First Department, at 27 Madison Avenue in Manhattan. Following is the testimony as submitted:

Thank you.  I appreciate the opportunity to testify today on behalf of the New York City Bar Association at this annual hearing to address access to justice for New Yorkers who cannot afford an attorney for their crucial civil legal services needs.  First let me start by thanking Chief Judge Lippman, Helaine Barnett and the Task Force – now Permanent Commission – for its unwavering commitment over many years to the cause of providing funding for civil legal services.  It has been a true game-changer, and has improved thousands of lives and provided support for our courts.  Please know that you have the gratitude of the Bar, as well as our commitment to this issue going forward.

The New York City Bar has long been committed to providing access to justice, though our policy and advocacy initiatives in support of civil legal services, court funding, and a right to counsel in Housing Court and detained removal cases, and through direct legal assistance provided by our public service affiliate, the City Bar Fund.  Within the City Bar Fund, our City Bar Justice Center leverages the efforts and resources of the City’s legal community to increase access to justice for low-income individuals in New York City through in-house and pro bono representation.

Through Chief Judge Lippman’s and former Chief Administrative Judge Prudenti’s outstanding leadership, the Judiciary Budget now includes $85 million for civil legal services.  We urge that you stay the course toward the original goal of a $100 million increase in annual civil legal services funding.  This is a vital element of any effort to provide additional legal assistance to those who cannot afford it.  There are still far too many unrepresented people facing threats to their basic needs every day in our courthouses.

Of course, adding $15 million in funding is a necessary but not sufficient condition.  We deeply understand the importance of pro bono representation, as well as the need to find innovative ways to leverage the volunteer efforts of New York’s legal community.  The City Bar has supported pro bono reporting, the 50-hour pro bono requirement for new lawyers, and the innovative Pro Bono Scholars Program.

Through the Justice Center programs, we’ve engaged volunteer lawyers to assist homeless individuals, cancer survivors, immigrant women and children who have been trafficked or abused, families facing foreclosure and veterans, among others.  Our Legal Hotline is the largest free general civil legal services hotline in New York City.  And now, thanks to additional funding, Hotline attorneys are able to provide brief or limited legal services to callers, such as creating court papers for pro so litigants and assisting with filling out forms.  These services will be the focus of my testimony today because they provide a good framework to talk about the provision of unbundled legal services in civil cases to those who otherwise would be without representation.

But first, some statistics.  The City Bar Justice Center helps about 25,000 New Yorkers annually with civil legal problems.  Last year, we closed approximately 13,000 cases and engaged approximately 1,400 pro bono attorneys to work on cases and conduct community trainings.  Included in those numbers are the thousands of New Yorkers who rely on the Legal Hotline, which we’ve expanded to include limited scope or unbundled legal services to callers.  Unbundled or limited scope services refers to the attorney agreeing to provide only one part of the legal services that a client may need.  This has become less controversial over the last decade and is no longer questionable ethically provided that the client is informed that they are receiving limited scope assistance in a clearly worded retainer letter.

At the Justice Center, we use limited scope services for many of our existing projects, such as the Elderlaw and Consumer Bankruptcy Project, as well as our Legal Hotline.  We are also operating two very interesting new projects using limited scope representation – Legal Assistance to the Self Represented (LASR) which is an extension of the brief services we provide on the Legal Hotline and the Federal Pro Se Legal Assistance Project (FedPro).  For purposes of this testimony, I will focus on state court matters only.

Since November 2014, the Justice Center has handled approximately 2,300 limited scope service cases.  Representation in these cases varies depending on the needs of the individual and can include providing legal answers over the phone, sending callers know-your-rights information, reviewing a caller’s faxed documents and providing advice, and setting up an in-person appointment with the caller so that a more extensive legal issue can be resolved.  Limited scope representation often results in the avoidance or settlement of litigation or it empowers a pro se litigant to effectively move forward with a pending case.  Examples of such representation include:

  • Assisting a disabled client with drafting and sending cease and desist letters to creditors in order to stop harassment, then guiding him through the steps listed on the court’s website to vacate a default judgment in civil court;
  • Helping a single working mother file an uncontested divorce while securing child support and healthcare for her two children;
  • Demanding the return of more than a year’s worth of rent overpayment to a senior citizen who did not know that his adjusted rent amount was approximately half of what he was paying; and
  • Coming to the aid of a widow by drafting an Article 78 proceeding to correct her husband’s death certificate so that she might receive the death benefits to which she is entitled.

Quick, brief representation in these sorts of cases can result in credits and refunds issued to clients as well as end the threat of litigation.

Barriers to Expansion of Unbundled Services/Limited Scope

Although the vast majority of the Justice Center’s limited scope cases do not involve court representation, we are aware that not all judges have embraced the notion of attorneys undertaking only one part of a case.  Further, we are aware of pro bono attorneys being concerned that they may be asked to stay on for the whole case even if their retainer spells out the limited nature of the representation.  We believe that the court should continue to educate judges that this is an essential part of bridging the justice gap and that attorneys should ethically be able to end their services after they complete a portion of the case. The ability to do this varies by the practice setting and court/administrative agency and judges need to be encouraged to permit this.  Attorneys will not volunteer for limited scope representation in court or administrative settings if they think they cannot end their representation on the case as per the limited scope retainer letter.

There is also a concern that pro bono attorneys who are trained to handle only one part of a case may fail to identify interconnected issues.  This increases the burden to explain carefully to the client that the representation will be limited in scope and will only focus on one aspect of a problem, which may entail additional legal issues.  In some cases, it would be inappropriate and in fact could worsen a problem to deal only with one issue. Those cases would not work for limited scope representation and should not be handled as limited scope matters.

Going Forward with Unbundled Services/Limited Scope

The City Bar Justice Center’s experience to date with unbundled legal services is very promising.  Our surveys of client satisfaction show that clients who can follow the directions are extremely happy with limited scope service and feel empowered.  The cases we’ve handled so far show potential to help even more people who cannot obtain full representation from a legal services or pro bono provider.  We believe that pro bono attorneys would be pleased to take on limited scope representation cases so long as the case is appropriate and an appropriate retainer letter is signed.   It is our hope to engage many more pro bono attorneys in this sort of representation.  It is our further hope to continue innovative collaborations around online intake for these sorts of cases, especially consumer debt cases.

I want to end my testimony by talking about the Pro Bono Scholars Program.  This past Spring, the City Bar Justice Center hosted two Pro Bono Scholars and it was a fantastic experience for all involved.   Our Scholars came from New York Law School and Cornell Law School and provided invaluable assistance answering hotline calls and providing brief services to callers.  They received training and provided concentrated support, in particular, to elderly and veteran callers needing assistance.  We believe this program holds great promise and look forward to continuing our participation in it.

* * *

Thank you for the opportunity to testify and a very special thank you to the Chief Judge for all he has done to improve access to justice in this state.  Your leadership has not only moved the needle, it has permanently altered the playing field.


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Citing a “critical juncture” and a “historic opportunity” to achieve change, the New York City Bar Association has announced the formation of a Mass Incarceration Task Force.

In a report released today, the City Bar urges federal and state leaders “to make the reduction of mass incarceration a top priority” and calls on Congress and state legislatures to repeal or reduce mandatory minimum sentencing provisions; reduce the sentences recommended by sentencing guidelines and similar laws for non-violent offenses; expand the sentencing alternatives to prison including drug programs, mental health programs and job training programs; and, in cases of incarceration, expand the availability of rehabilitative services, including counseling and educational opportunities, during and following incarceration so that individuals can successfully reenter society and avoid recidivism; eliminate or reduce financial conditions of pretrial release; provide opportunities for individuals with misdemeanor and non-violent felony convictions to seal those records to prevent employment and other discrimination; and, in New York, enact legislation to raise the age of juvenile jurisdiction from 16 to 18 years old.

While multiple City Bar criminal justice committees—including the Committees on Federal Courts, Criminal Justice Operations, Corrections and Community Reentry, Criminal Law, Criminal Advocacy, Criminal Courts, Civil Rights and White Collar Crime—have worked on these issues over the years and provided input on the report, this mass incarceration effort had its genesis in the City Bar’s Executive Committee. Among its members are Hon. Jed S. Rakoff, a United States District Judge for the Southern District of New York, who said, “Mass incarceration has had a devastating impact on the lives of far too many Americans, leaving entire families shattered and communities distraught. But there is a growing consensus that our overly punitive policies of the past can be replaced with far more positive approaches. Now is the time to translate that consensus into action.”

Zachary W. Carter, a member of the City Bar’s Executive Committee who is Corporation Counsel of New York City and a former United States Attorney for the Eastern District of New York, said, “Our sentencing policies have incarcerated far too many for too long for non-violent offenses that could be safely addressed by alternatives that better redirect these overwhelmingly black and brown young men toward productive lives in their communities.”

The City Bar’s Mass Incarceration Task Force will be comprised of defense attorneys, prosecutors, judges and other experts and criminal law practitioners. The Task Force will continue to examine the issues raised in the report, guide and support the City Bar’s advocacy efforts, and bring together experts to explore how best to achieve the multifaceted actions required to reduce the world’s highest incarceration rate. With just 5% of the world’s population, the U.S. incarcerates 25% of the world’s prisoners. In the U.S. there are now 2.3 million people in prison, which is five times the number of people incarcerated in 1970. One in 35 African-American men and one in 88 Latino men are in prison.

As part of this effort, a dedicated section on the City Bar’s website will feature reports, legislative initiatives, data and other information relevant to the effort to reduce mass incarceration. These postings will include links to reports and statements from the City Bar during the last 20 years, when the Association has been a key voice addressing the criminal justice issues that have contributed to the rising rate of incarceration and the post-release difficulties facing those who have served time in prison.

“In 2015 we can look back at our past reports, statements and letters to public officials, including work in 1994 on mandatory minimum sentences, in 1996 on bail reform, in 2000 on the Rockefeller drug laws, in 2008 on the sealing of drug convictions, right up to work this year on raising the age of responsibility in New York and the sealing of misdemeanor and non-violent felony convictions,” said City Bar President Debra L. Raskin. “If we connect the dots, it becomes clear that society’s failure to address these issues unfortunately has contributed to the mass incarceration crisis we have today.”

Executive Committee member John Savarese, a partner at Wachtell, Lipton, Rosen & Katz and a former prosecutor in the U.S. Attorney’s Office for the Southern District of New York, led the effort to draft the report on behalf of the City Bar and will serve as the Task Force’s Chair. He said, “The time is ripe for public officials, members of the bar, and others who are focused on these important issues to do all they can to address the broad array of problems associated with mass incarceration. Awareness of the issue has grown in recent years and there now appears to be increasing support for reform across the political spectrum and throughout the criminal justice system. We are seeing that this is something defense lawyers, prosecutors and judges can all agree on, and we intend to mine the cumulative wisdom of our multifaceted membership to make a difference.”

In calling this a “critical juncture” and a “historic opportunity” for change, the City Bar’s report cites recent bipartisan efforts on federal reform legislation, including on the “Smarter Sentencing Act” and the “SAFE Justice Reinvestment Act of 2015,” as well as President Obama’s major speech on mass incarceration to the NAACP and modifications to the Justice Department’s charging policies.

“The current levels of incarceration in the United States were not achieved overnight and are not necessarily amenable to one overarching solution,” the City Bar’s report reads. “It is clear, however, that maintaining the status quo is not an option. The problems caused by our current criminal justice policies are multifaceted and will require multi-pronged, creative solutions to correct the inequities caused by the existing regime as well as thoughtful proposals for reform of the system going forward.”

The report can be read here: http://bit.ly/1iEEbDq

The City Bar’s Mass Incarceration web page is here: http://bit.ly/1OBTc6z


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Three women were awarded $6.2 million on Tuesday in a pregnancy discrimination lawsuit in Bronx County Supreme Court. The women were represented by Scott A. Lucas and Steven M. Sack, two attorneys retained through the New York City Bar Legal Referral Service (LRS), a program that refers screened and qualified lawyers to the public.

After a one month trial, the jury in Santana, et al. v. G.E.B. Medical Management, Inc., et al., 305261-08 awarded the three plaintiffs $4.5 million in compensatory damages, $181,000 in lost wages, and $1.5 million in punitive damages. The Honorable Alison Y. Tuitt presided over the trial.

“The verdict sends a message to all employers that they can’t harass and fire women for being pregnant,” said Lucas, the plaintiff’s lead trial counsel. Sack, their co-trial counsel, said, “We fought this battle for eight long years, and truth and justice prevailed.”

According to the lawsuit, the three plaintiffs worked as administrative employees and were treated as valued members of the team; however, that changed when the employer learned they were pregnant or suspected of being pregnant, and the women were then harassed, falsely accused of poor performance, and fired.

After contacting numerous attorneys who declined to take the case, the plaintiffs contacted the LRS in 2007, which referred them to Lucas and Sack. They were also the lawyers who won a landmark decision from the New York Court of Appeals in 2008 in Samiento v. World Yacht, Inc. on behalf of waiters who were denied the 20% “service charge” commonly added to the bill in lieu of a voluntary tip. That decision made it much harder for restaurants to keep gratuities intended for their wait staffs. That was another case referred through the LRS.

The LRS, a nonprofit sponsored by the New York City Bar Association and the New York County Lawyers Association, was established in 1946 and has up to 100,000 points of contact with the public per year, directing them to experienced lawyers in a wide range of legal fields. The LRS can be reached at 212-626-7373 (212-626-7374 for Spanish speakers) or www.citybarlegalreferral.org.


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The New York City Bar Association has evaluated the candidates running in the September 10th Democratic Party primary elections for Civil Court in Kings and New York Counties. The review was conducted by the Association’s Committee on the Judiciary.

The Committee uses two ratings: Approved and Not Approved.  Candidates rated Approved have affirmatively demonstrated qualifications necessary for the performance of the duties of the position for which they are being considered.

Kings County

Civil Court, 6th District

Hon. Michael Gerstein – Approved

Isiris Isela Isaac - Approved

New York County

Civil Court, 8th District

Ta-Tanisha James - Approved

Lisa S. Headley – Approved

Correction to the press release of September 3, 2015: In Kings County, Civil Court, 7th District, as Carolyn Walker-Diallo’s opponent has dropped out of the race, there will be no primary in her district, making her the Democratic candidate in the general election. She has therefore been removed from the list of candidates evaluated by the City Bar for the primary.

Note: To ensure the thoroughness and integrity of the ratings process, the City Bar cannot comment beyond what is provided herein.


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The Public Service Committee of the City Bar’s New Lawyers Council is collecting new or gently used books for children ages 12 and under, for donation to the New York State Unified Court System’s “Children’s Centers.” This statewide network of centers provides services for the hundreds of young children who accompany caregivers to court appearances every day. In New York City, there are Centers located throughout the five boroughs, run by Safe Horizon. Books in all languages, particularly English and Spanish, are welcome.

Books for donation may be dropped off at the collection station in the lobby of the New York City Bar Association through October 1st. Alternatively, please email Brittney Pescatore to make separate arrangements.


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The New York City Bar Association’s Committee on European Affairs recently wrote a letter supporting European Council conclusions adopting provisional measures and urging the adoption by the Council and European Parliament of European Commission proposals to develop a broad and coherent European Migration Agenda. The letter recommends that all EU Member States and others accept responsibility for relocation and resettlement of those asylum applicants who are most vulnerable. Further, the letter recommends that additional proposals be elaborated by the European Commission to continue seeking solutions to the complicated issues affecting the EU, its Member States, citizens in local communities throughout Europe, and the people who have arrived in the EU by whatever means fleeing desperate conditions in their home states and who are in greatest need of protection of their basic legal and social rights.

The letter can be read here: http://bit.ly/1i7SaBU



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