The New York City Bar Association is now accepting nominations for the Twenty-sixth Annual Legal Services Awards. The award is designed to recognize the efforts of lawyers and non-lawyers who have directly provided free legal services to indigent clients on a full-time basis for an extended period of time. Nominees should have provided these legal services for at least five years.

 

Letters of nomination should fully identify the nominee and describe his or her outstanding legal services efforts. Please address nomination letters to the Legal Services Awards Committee, Executive Director’s Office, New York City Bar Association, 42 West 44th Street, New York, NY 10036; fax (212) 398-6634. Nomination forms are also available here. The letter or form can also be emailed to Margot Isaacs at the Association. For more information, email Margot Isaacs or call her at (212) 382-6624.

 

The deadline for nominations is Friday, April 24, 2015. The Association will honor the winners at a reception later this spring.

 

 

 

 

 

Posted in New York City Bar Association | Tagged , | Comments Off

The New York City Bar Association, through its LGBT Rights Committee and its Cyrus R. Vance Center for International Justice, along with Weil, Gotshal & Manges LLP, Human Rights Watch and several international partners, submitted an amicus brief to the United States Supreme Court in the case of Obergefell v. Hodges on marriage equality for same-sex couples.

The brief reviews the situations in five countries—the Netherlands, Canada, South Africa, Argentina, and New Zealand—on different continents that have introduced marriage equality, and asks the Court to look to them for guidance as it hears arguments on the issue in the States.

The international partners are: Canadian Civil Liberties Association; The National Council for Civil Liberties (“Liberty”), UK; Legal Resources Centre, South Africa; Center for Legal and Social Studies, Argentina; and La Federación Argentina de Lesbianas, Gays, Bisexuales y Trans, Argentina.

Weil attorneys Richard Levine and Robert Vlasis III were counsel for the amici curiae, and Marie-Claude Jean-Baptiste and Suzanne Knijnenburg were the Vance Center’s attorneys on the matter.

The brief may be read here: http://bit.ly/1xzp316

 

Posted in New York City Bar Association | Tagged , , , , , , , , , , , , , , , , , , , | Comments Off

While commending Governor Cuomo’s effort to address the critical issue of the public’s support for the criminal justice system in the wake of the Eric Garner grand jury determination, the New York City Bar Association believes the proposed reforms in the Criminal Justice Reform Act of 2015 (A.3011/S.2011) require further study in order to be effective, and specifically opposes the proposal for an “independent monitor.”

Under the proposal, a Governor-appointed independent monitor would be responsible for reviewing grand jury investigations into cases involving the police-related death of an unarmed civilian. The independent monitor would have the power to refer cases to the Governor for the purpose of appointing a special prosecutor when it was found that the district attorney inappropriately declined to prosecute or the grand jury presentation did not conform to the law.

In a report prepared with the input of six committees, the City Bar critiques this proposed process as “an after-the-fact solution that is too cumbersome and distant from the time of the grand jury presentation to be of real value.” Since the independent monitor would take into consideration both the witnesses and evidence chosen by the prosecutor to present to the grand jury as well as the prosecutor’s report, it is “likely that the independent monitor’s report will be little more than a justification for the actions taken by the prosecutor,” the report states. “This is particularly so because the independent monitor can recommend a special prosecutor only where ‘substantial error’ creates a ‘reasonable probability’ of an indictment such that the presumption of regularity afforded to such proceedings can no longer apply, or if the independent monitor uncovers newly discovered evidence ‘of such magnitude that there exists a reasonable probability that had such evidence been presented’ an indictment would have resulted.”

Furthermore, according to the report, “A two-step process such as that contemplated by Section 1 also creates concerns about the due process rights of police defendants because they would be subject to a system of review separate and apart from every other defendant.”

While the City Bar’s committees did not have a consensus as to whether a special prosecutor is necessarily the best way to proceed in cases where unarmed civilians are killed in encounters with police, there was agreement that further study of the possibility is warranted because it may provide an important reform without overhauling the entire grand jury system.

Provisions of the proposal which allow a DA to create a grand jury report or issue a public letter also raise some concerns as drafted: “For instance, the legislation suggests that the DA’s explanatory letter explain ‘the basis of the grand jury’s decision to dismiss the indictment.’ This does not accurately reflect the grand jury process: grand juries determine whether there is probable cause to charge a person with a crime by indictment; grand juries do not possess the authority to dismiss indictments. More significantly, as the law currently stands, neither prosecutors nor anyone else has the right or the authority to learn why grand jurors or a grand jury declined to vote to indict, making this part of the proposed legislation impractical. Additionally, by calling these DA reports ‘grand jury reports,’ the possibility of public misunderstanding may be enhanced, since such reports would come not from the grand jurors themselves but from the very DA whose motives will be at issue and therefore still subject to public skepticism.”

In addition, creating any carve-out in the grand jury process for police officers is a significant public
policy change worth deeper consideration, because, according to the report, “While some would argue that issuing a grand jury report in these cases would assist the public in understanding the evidence (or lack thereof), others are concerned that this kind of legislation would ultimately prejudice police defendants, who deserve the same treatment and due process protections as other defendants.”

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

 

Posted in New York City Bar Association | Tagged , , , , , , | Comments Off

The New York City Bar Association supports raising the age of criminal responsibility from 16 to 18, as proposed in the 2015-2016 New York State Executive Budget.

The Proposal is based on a report produced by the Commission—comprised of law enforcement, advocates and service providers—appointed by Governor Cuomo to make recommendations on how New York could raise the age of juvenile jurisdiction and make other reforms to improve youth outcomes while increasing community safety.

A City Bar report collaborated on by eight committees notes, “The Commission Report and the Proposal represent a comprehensive approach to reforming the youth justice system. The recommendations came from a thorough study of best practices in New York and across the nation, including the lessons learned from jurisdictions that have successfully raised the age in recent years. The City Bar applauds the work of the Commission and supports the Proposal. We urge its passage this session.”

The Proposal would raise the age of juvenile jurisdiction to 18 years old, consistent with national norms. Family Court would have original jurisdiction over most youth who were arrested; using current numbers, this would shift approximately 86% of the 16- and 17-year-olds cases to Family Court. However, Criminal Court would retain jurisdiction over youth charged with serious-offense crimes and offense charged under the Vehicle and Traffic Law. Youths retained in adult court would also have additional protections and receive age-appropriate treatment.

The City Bar has previously expressed support for raising the age of criminal responsibility.

Citing research supporting the view that adolescent brains do not develop full decision-making capacity until into the mid-20’s, the report notes, “we grounded our support in the following overarching concepts: that raising the age will reduce recidivism; that adult jails are dangerous for youth; that alternatives to incarceration are a more effective and cost-efficient way to reduce youth recidivism than detention and incarceration; that youth charged as adults face an array of collateral consequences that prevent them from moving forward with their lives; and that raising the age will help to reduce racial and ethnic disparities in our criminal justice system.”

The Proposal also would create a new Youth Part in the superior court of every county to hear the cases of 16- and 17-year-olds who remain in Criminal Court. Youth Part judges would receive specialized training in adolescent development and research-based recidivism prevention, and would have expanded discretion to remove cases to Family Court, or retain cases in the Youth Part but apply all of the provisions and protections of the Family Court Act. The Department of Probation will conduct a risk and needs assessment of all youth who are not detained, and provide referrals to appropriate evidence-based services.

The Proposal would also ensure that no youth under the age of 18 are detained in adult jails, regardless of whether they are in Family or Criminal Court. Additionally, consistent with research showing that when low-risk youth are more deeply involved in the justice system they are more likely to reoffend, the legislation contains several provisions to increase diversion from courts and from detention and placement.

As a first step toward incorporating this understanding into the justice system, notes the report, the Proposal expands the eligibility for a youthful offender adjudication—which replaces convictions and makes the court records confidential—to youth under age 21. The Proposal also provides that the court records for all youth who are eligible for a youthful offender adjudication (except those charged with sex offenses) will be confidential while the case is pending and that the proceedings can be held confidentially upon request. The State has also committed to bearing the costs associated with raising the age of juvenile jurisdiction.

As the report concludes, “the City Bar believes the reasons for raising the age for the crimes identified in the Proposal are equally applicable to all crimes. We hope that after the Proposal is fully implemented and demonstrating success, the Legislature will see fit to amend the law so that it includes all crimes.”

The report may be read here: http://bit.ly/1BLMWCh

 

Posted in New York City Bar Association | Tagged , , , , , , | Comments Off

In this political climate, it is particularly important that the public have a high level of trust in its elected officials. The public should know that its elected officials are in government to work in the public interest, not to take care of their own interests. One key element of establishing public trust is disclosure of outside income.

In 2010, the New York City Bar Association issued a report [http://bit.ly/1FsJZYA] saying New York’s lawmakers should be required to disclose the sources and amounts of their outside income—specifically including the identity of paying clients—and to provide a description of the services rendered. The report concluded that there is no basis for excluding lawyer-legislators from the public scrutiny to which legislators should be held and that an independent system could be developed so that claims of attorney-client privilege could be vetted in those limited circumstances where the public’s interest in disclosure is outweighed by a client’s interest in secrecy.

The Public Integrity Reform Act of 2011 took the first steps in this direction, by establishing a limited regime for lawmakers’ disclosing their clients. However, that level of disclosure has been inadequate, and does not provide the opportunity for scrutiny that the public deserves. The proposal in the Executive Budget legislation would establish the level of disclosure of outside income contemplated in the City Bar’s 2010 report, and we applaud the Governor for highlighting the importance of this issue, and welcome the Assembly’s agreement. We urge the Legislature to adopt the outside income disclosure provisions proposal in full, to demonstrate the Legislature’s commitment to bolstering public confidence in our State’s government.

Please see a fuller statement released by the City Bar today addressing the Budget disclosure proposals and other ethics issues: http://bit.ly/1FC6SZp

 

Posted in New York City Bar Association | Tagged , , , , , , | Comments Off

As you read this, the Governor and legislative leaders are negotiating the State’s budget for the fiscal year beginning April 1st. And as has become customary, the Governor’s proposed budget legislation includes many public policy issues. This year, two of the important topics included in the proposed budget involve significant criminal justice policy considerations: raising the age of criminal responsibility, and addressing the aftermath of the Eric Garner grand jury determination. In both instances, City Bar committees worked together on position statements that we have submitted to the Governor and Legislature.

Eight City Bar committees collaborated on a report supporting the Governor’s proposal to raise the age of criminal responsibility in New York from 16 to 18. All but one other state sets the age of criminal responsibility at 18. Raising the age would channel 16 and 17-year old offenders into Family Court, with its better services and options, and into youth correction facilities rather than adult prisons, where young offenders may be more likely to learn to be career criminals than to take a lawful path.

Under the Governor’s proposal, which was based on the work of the Commission on Youth, Public Safety and Justice, cases involving youth under 18 would be heard in Family Court, with certain exceptions, such as violent felonies and vehicle and traffic offenses. Youth who are retained in adult court would have additional protections and receive age-appropriate treatment. The proposal also creates a new Youth Part in the superior court of every county that would hear the cases of 16- and 17-year-olds who remain in the adult criminal courts. Youth Part judges would receive specialized training in adolescent development and research-based recidivism prevention. Youth Part judges would have expanded discretion to remove cases to Family Court, or to retain cases in the Youth Part but to apply all of the provisions and protections of the Family Court Act, upon finding that such treatment is in the interest of justice.

We based our support on the following overarching concepts: that raising the age will reduce recidivism; that adult jails are dangerous for youth; that alternatives to incarceration are a more effective and cost-efficient way to reduce youth recidivism than detention and incarceration; that youth charged as adults face an array of collateral consequences that prevent them from moving forward with their lives; and that raising the age will help reduce racial and ethnic disparities in our criminal justice system. Raising the age of criminal responsibility also makes scientific sense: research shows that adolescent brains do not develop full decision-making capacity until into the mid-20s. Our youth should not be saddled with the lifetime consequences of adult convictions and deserve the opportunity to participate as full members of their communities. We urge the Legislature to pass the Governor’s proposal.

The Governor’s budget legislation also attempts to address the concerns prompted by the Garner grand jury determination by including the Criminal Justice Reform Act of 2015. The proposal specifies a number of changes that were reviewed and considered by six City Bar committees. Perhaps the most significant  provision of the proposal would establish a Governor-appointed “independent monitor” who would be responsible for reviewing the grand jury investigations of cases involving the police-related death of an unarmed civilian. The independent monitor would then have the power to refer cases to the Governor for the purpose of appointing a special prosecutor when it was found that the district attorney inappropriately declined to prosecute or the grand jury presentation did not conform to the law. While we commend the Governor’s effort to address the critical issue of the public’s perception of and confidence in the criminal justice system, we oppose the creation of an independent monitor as both logistically problematic and inadequate.

The review by an independent monitor with a possible referral to a special prosecutor is an after-the-fact solution that is too cumbersome and distant from the time of the grand jury presentation to be of real value. Since the independent monitor would take into consideration both the witnesses and evidence the prosecutor chose to present to the grand jury as well as the prosecutor’s report, it is likely that the independent monitor’s report would be little more than a justification for the actions the prosecutor took. The possibility of a rubber stamp is particularly  likely because the independent monitor can recommend a special prosecutor only where “substantial error” creates a “reasonable probability” of an indictment such that the presumption of regularity afforded to such proceedings can no longer apply, or if the independent monitor uncovers newly discovered evidence “of such magnitude that there exists a reasonable probability that had such evidence been presented” an indictment would have resulted. A two-step process also creates concerns about the due process rights of police defendants because they would be subject to a system of review different from that accorded every other defendant.

If the goal of the independent monitor proposal is to assure the public that the process for handling cases involving deadly force by police against unarmed civilians is fair and unbiased, we believe further study and consideration should be given to the role of an independent special prosecutor in such cases.

In addition to opining on these budget proposals, the City Bar hosted a panel discussion on March 3rd on NYPD policies and improving police/community relations, which featured a panel reflecting diverse efforts to come to grips with this fundamental issue. The time is ripe for a robust public discussion of our criminal justice system that involves all stakeholders, and we urge the Governor and Legislature to facilitate that discussion this session so that meaningful reforms can be achieved. We will continue to issue reports, conduct programs, advocate legislation and otherwise work toward achieving a fair and responsive criminal justice system.

Debra L. Raskin is President of the New York City Bar Association.

Posted in New York City Bar Association | Tagged , , , , , , , , , , , | Comments Off

The New York City Bar Association’s Committee on Professional Ethics has issued an Opinion (2015-2), stating that although the use of a flat, nonrefundable monthly fee in a retainer agreement raises a number of ethical issues, it is permissible in certain circumstances, provided it is not excessive, is fully earned, and does not impede the client’s right to terminate the representation. The retainer agreement must also clearly disclose how the fee is calculated, what services it covers, and under what circumstances the fee becomes fully earned and, thus, nonrefundable.

New York lawyers are prohibited from entering into an arrangement for a “nonrefundable retainer fee,” according to Rule 1.5(d)(4) of the New York Rules of Professional Conduct. They may, however, charge a “reasonable minimum fee” if the retainer agreement “defines in plain language and sets forth the circumstances under which the fee may be incurred and how it will be calculated.” For the purpose of Rule 1.5(d), the Committee believes that the difference between a minimum and flat fee is immaterial and that a flat fee is ethically permissible if it satisfies the other requirements of Rule 1.5.

Generally fees paid to a lawyer in advance are nonrefundable only to the extent they have been earned; see Rule 1.16(e). A “general retainer,” a fee that is paid solely to secure a lawyer’s availability and not intended to compensate them for legal services, is earned whether or not the lawyer performs any legal work, provided the arrangement is made clear to the client. Alternatively, a fee paid in advance for legal services for specific, identified matters, or “special retainer,” is not earned unless those services are performed. To determine whether the nonrefundable monthly fee is ethically permissible, notes the opinion, it must be analyzed as a “hybrid retainer” – a fee that combines aspects of both types.

As the opinion states, in light of Rule 1.5(d)’s prohibition against nonrefundable retainers, charging a nonrefundable monthly fee raises significant concerns and should be analyzed carefully, specifically in regard to four key questions:

Is the Fee “Excessive” Under Rule 1.5(a)? A lawyer must determine whether the amount of the fee would be “excessive” under the relevant circumstances. Rule 1.5(a) lists some of the factors to be considered, such as: the time and labor required, the novelty and difficulty of the work, and the skill required to perform the services; the likelihood that acceptance of the employment will preclude other employment by the lawyer; the experience, reputation and ability of the lawyer; and whether the fee is fixed or contingent. As the opinion notes, “a monthly fee is not excessive solely because it involves a minimum or flat amount.”

Is the Fee Fully Earned? Assuming the fee is not excessive, then it will be fully earned, so long as either: (1) the client has not requested any services from the lawyer during the month; or (2) the lawyer has provided any services requested by the client that month, which fall within the scope of the retainer agreement. The lawyer must consider, however, what happens if the client requests services in a particular month which the lawyer fails to provide. One way to address this concern is to agree that the monthly fee is nonrefundable only if no services are requested during the month or the lawyer performs any services requested during the month. If, on the other hand, the client requests services that the lawyer fails to perform, then the monthly fee would be fully or partially refundable. Whether this approach works would depend in part on the reasonableness of the allocation in light of the factors to be considered in assessing whether a fee is excessive. The retainer agreement should explain the basis for making any portion of the monthly fee non-refundable.

Does the Fee Impede the Client’s Termination Right? A nonrefundable monthly fee must not operate as a disincentive for the client to terminate the representation. Thus, in setting the amount of the monthly fee, the lawyer must consider whether it will create a meaningful financial disincentive for the client to terminate his or her relationship with the lawyer. This determination will depend, among other things, on the amount of the fee and the client’s financial circumstances and expectations.

Is the Fee Adequately Disclosed in the Retainer Agreement? Rule 1.5(b) requires a lawyer to “communicate to a client…the basis or rate of the fee and expenses for which the client will be responsible.” In addition, Rule 1.5(d)(4) permits a lawyer to charge a “reasonable minimum fee” if the retainer agreement “defines in plain language and sets forth the circumstances under which the fee may be incurred and how it will be calculated.” The retainer agreement should explain clearly which services are included in the monthly fee if requested by the client. It should also explain why and to what extent the monthly fee is nonrefundable, and must avoid any suggestion that the monthly fee is nonrefundable without being earned.

As the Committee concludes, while use of a flat, nonrefundable monthly fee in a retainer agreement raises a number of ethical issues that must be considered carefully, ultimately such a fee may be permissible in certain circumstances, provided it is not excessive, is fully earned, does not impede the client’s right to terminate the representation, and is adequately disclosed.

The opinion can be read here: http://bit.ly/1E4rDhg

 

Posted in New York City Bar Association | Tagged , , , , , , , , , | Comments Off

The New York City Bar Association urges the Legislature to accept the Judiciary’s 2015-2016 Budget Request in its entirety.

The Budget Request seeks a 2.5% increase, amounting to $51.3 million dollars, in the “All Funds Budget.” Funds would be used to increase the number of courts that can remain open to the public until 5 p.m., allow courts to maintain current staffing levels, and fill a limited number of critical positions. Increased funds are also requested for legal services to ensure that the most vulnerable New Yorkers are not without counsel in cases involving the essentials of life.

A report, prepared by the Association’s Council on Judicial Administration, outlines that since 2009, the Judiciary has absorbed nearly $400 million in increased costs while its budget has increased only $27.5 million, or 1.5%. As a result of cutbacks of $170 million in the 2011 Judiciary Budget, the Judiciary was forced to close the Civil Court buildings and courtrooms early, lay off staff, and cease hiring to replace employees lost through attrition. During this period, the New York State Unified Court System lost 2000 employees. Staff shortages caused delays in processing court documents and imposed hardship on litigants throughout the court system.

The City Bar gives numerous examples of the difficulties caused by what it calls the “starvation diet” given to our court system, including sex offense victims forced to go through repeated emotional distress as their cases are postponed multiple times; a robbery case postponed six times, after which the victim refused to appear again; debtors in Civil Court forced to wait months because their files can’t be found; and shortages of clerks and interpreters causing backups of weeks and months in Housing Court. In State Supreme Court, an attorney recently had to wait six months for a one sentence written decision confirming an arbitration award on default.

The 2015-2016 Judiciary Budget Request includes the costs of five Family Court judgeships created effective January 1, 2016; 20 Family Court judgeships created effective January 1, 2015, and the City Court judgeships established pursuant to Chapter 548 of the Laws of 2013. Additionally, it includes an increase of $15 million in funding for civil legal services to address the needs of unrepresented litigants. As detailed in the Budget Request, it is estimated that for each dollar invested in civil legal services, New York State receives more than six dollars in economic benefits resulting from reduced social services and other public expenses as well as an increase in federal benefits.

While the previous year’s “Road to Recovery” Judiciary Budget improved somewhat the harsh impact of the budgetary shortfalls implemented in 2011, the Judiciary still has “a long way to go before it recovers from those cutbacks,” notes the report. “The Legislature should appropriate sufficient funds to ensure that the Judiciary Budget continues on its road to recovery and is able to satisfy the Judiciary’s important responsibilities to the people of the State of New York.”

The report may be read here: http://bit.ly/1ALgVs3

 

Posted in New York City Bar Association | Tagged , , , , | Comments Off