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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The New York City Bar Association’s Committees on International Human Rights and Asian Affairs authored a letter to the President of the People’s Republic of China to express grave concern regarding the intimidation, arrest, detention, and in many cases ongoing enforced disappearance of 228 – an unprecedented number – of Chinese lawyers, lawyers’ family members, support staff, and human rights and legal activists in a sweeping crackdown that began on July 9th.

These methods – which violate Chinese and international law – are being used against lawyers who were carrying out their duties as legal professionals simply because their work relates to human rights matters and public interest causes. The letter expresses distress that many of those who remain in detention have been denied access to legal counsel and to their families.

The letter urges that the targeted individuals be released, that any ongoing detentions conform to international standards of detention, and that the Chinese government take other steps to ensure that lawyers in China are free to carry out their professional obligation without intimidation, hindrance, harassment, or improper interference, in conformity with international standards and Chinese domestic law.

The letter may be read here: http://bit.ly/1Ke1kTQ

Update – August 11, 2015 – Read the editorial mentioning the City Bar’s letter in today’s Wall Street Journal.

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In a letter to the presidents of the Beijing, Shanghai, and Guangzhou Bar Associations, the New York City Bar Association expressed concern over the current draft of the People’s Republic of China Non-Mainland Non-Governmental Organization Management Law with regards to its scope and potential effects.

The letter, prepared by the Committees on Asian Affairs and International Human Rights and signed by City Bar President Debra Raskin, notes that the Association “has long sought to deepen its relationship with and to promote the rule of law in China,” but is generally concerned that “the Draft Law’s ambiguous and potentially expansive breadth, as well as the onerous registration and approval requirements it places on foreign non-governmental organizations (“NGOs”), will unduly discourage many foreign NGOs from engaging in a variety of beneficial exchanges with China.”

The entities covered by the Draft Law span a wide range of sectors, including universities, scientific institutes, charities, environmental and cultural organizations, humanitarian organizations, and trade groups. “Through their participation in China’s growth and progress, such organizations have enabled mutually profitable relationships between China and its most valued international partners in trade, cultural exchange, and strategic cooperation, and have no doubt contributed much to China’s present prosperity and strength.”

However, the letter continues, “unimpeded mutual exchange between China and the rest of the world is a vital part of that process, a process in which foreign NGOs play a crucial role.” As the letter states, the Draft Law “will have numerous negative consequences for China’s ability to import cultural and knowledge capital from the rest of the world,” three of which are most serious:

  • The scope of the Draft Law is ambiguous and potentially overbroad. The Draft Law governs the “activities” of any “not-for-profit, non-governmental social organization established outside of mainland China.” The term “activity” is undefined. This scope of application potentially includes every possible type of foreign NGO, and every possible form of activity it may undertake.
  • The Draft Law stipulates a multi-stage registration and sponsorship process that sets a high cost of compliance. The Draft Law requires that each covered organization seeking to conduct an activity in China obtain both a government sponsor and approval from the ministry of public security, and stipulates an open-ended continuing obligation to submit to monitoring, thereby imposing administrative and compliance costs on organizations, which many would find difficult to sustain.
  • The Draft Law’s ambiguities impose enormous uncertainties, even for organizations that can afford to meet its registration requirements. The Draft Law contains numerous ambiguities, from the lack of specificity as to the criteria upon which an NGO’s application for approval will be assessed, to the lack of specified penalties for violation of the law, which may deter organizations from participating in activities in China regardless of their ability to respond to the law’s stipulations.

For many organizations, including the City Bar, the letter states, “the effort required to respond to the Draft Law’s broad and ambiguous stipulations is unduly burdensome,” and concludes that if China “is to continue reaping the numerous benefits of exchanges that NGOs facilitate, we respectfully request that China seriously re-consider the potential impact and current framework of the Draft Law.”

The letter can be read here: bit.ly/1M1Ow7G

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Joseph Tillman, an Associate at Gibson Dunn & Crutcher and member of the City Bar’s Diversity Pipeline Initiatives Committee, is the winner of the SoFi #2BillionTogether student loan payoff contest. Joe received more than 14,000 votes to relieve his $170,000 student loan debt. A graduate of New York University School of Law, he served as a Senior Executive Editor on the New York University Law Review and as the Vice-Chair for the Black Allied Law Students Association. Joe is active in mentoring and supporting students in his community and in the legal profession.You can read the moving story Joe wrote to win the contest and watch a video of him getting the good news here.

 

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The New York City Bar Association’s Committee on Professional Ethics has issued Formal Opinion (2015-5), stating that an attorney who intends to threaten disciplinary charges against another lawyer should “carefully consider” whether doing so violates the New York Rules of Professional Conduct. Although disciplinary threats do not violate Rule 3.4(e), which applies only to threats of criminal charges, they may violate other Rules.

Rule 3.4(e) arguably comes closest to addressing the issue, as it prohibits lawyers from threatening “to present criminal charges solely to obtain an advantage in a civil matter,” yet it is silent in regards to threatening disciplinary charges. While the plain language of Rule 3.4(e) limits its reach to threats of criminal charges, this does not mean that lawyers are “free to threaten disciplinary charges with impunity,” states the Opinion. As discussed below, other ethical rules impose limits on making such threats.

Under Rule 8.3(a), New York attorneys are required to report certain misconduct by other lawyers.  Specifically, “[a] lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.” Once an attorney concludes that she has a mandatory duty to report another lawyer’s conduct, failure to do so would itself violate Rule 8.4(a), which prohibits a lawyer from “violat[ing] or attempt[ing] to violate the Rules of Professional Conduct.” By extension, “threatening to file a disciplinary complaint unless the other lawyer accedes to some demand would, likewise, violate Rule 8.4(a),” even if the attorney who made the threat ultimately reports the other lawyer’s conduct. That said, the Opinion states that “before making a report, an attorney is permitted to confront her adversary with evidence of misconduct to confirm that an ethical violation has occurred.”

Attorneys are not required to report every ethical violation. For instance, an attorney is not required to report conduct that she merely suspects has been committed. However, notes the Opinion, even where an attorney is not required to report unethical conduct, she is permitted to do so, subject to confidentiality restrictions and provided she has a “good faith belief of suspicion that misconduct has been committed.”

“Given that any disciplinary threat must be based on a good faith belief, it necessarily follows that a lawyer may not make a threat she knows to be false,” says the Opinion. Rule 4.1 states that “[i]n the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.” This prohibition includes threatening to file a disciplinary grievance that is based on a false statement of fact or law. Such a threat would also violate Rule 8.4(c), which prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation.”

In addition, making such a threat in a civil or criminal proceeding may also violate Rule 3.1(a), which states that a “lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.” According to the Rule, “[a] lawyer’s conduct is ‘frivolous’ if,” inter alia, “the lawyer knowingly asserts material factual statements that are false” or “the conduct . . . serves merely to harass or maliciously injure another.” R. 3.1(b).

Like Rule 3.1(b), Rule 4.4(a) serves to curb misconduct aimed at harming third parties, but applies to all types of representations. Rule 4.4(a) states, inter alia, “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass or harm a third person.” Threatening to file a disciplinary complaint against an adversary in order to gain a strategic advantage violates this rule, states the Opinion, “if the threat serves no substantial purpose other than to embarrass or harm the other lawyer or his client.”

Furthermore, notes the Opinion, “We do not believe that the goals of the disciplinary rules are served when an attorney uses a disciplinary threat improperly to create a conflict of interest between another lawyer and his client. There are legitimate options available to the plaintiffs’ attorney to address the misconduct, including seeking sanctions or disqualification.” Additionally, under certain circumstances, threatening to file a disciplinary complaint may also violate New York’s law against extortion or other criminal statutes. 

The Opinion notes that there may be instances in which a threat to report a disciplinary violation is appropriate. “For example, if an attorney suspects another lawyer is unaware that his conduct violates the Rules, it may be appropriate to educate the lawyer about the violation and give him an opportunity to change his conduct, before filing a disciplinary violation. In addition, it may be appropriate to threaten disciplinary action in order to induce the other lawyer to remedy the harm caused by his misconduct, such as returning improperly withheld client funds or correcting a false statement made to the court.” However, given the opportunity for abuse, the Opinion emphasizes that the right to threaten a disciplinary grievance is subject to important limitations, as described in the Opinion.

Ultimately, an attorney intending to threaten disciplinary charges against another lawyer should thoughtfully consider whether doing so violates the New York Rules, because while disciplinary threats do not violate Rule 3.4(e), they may violate other Rules.

The Opinion can be read here: http://bit.ly/1BPzz6i

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Having recently reached the midpoint of my two-year tenure as president of the New York City Bar Association, I invite you to look back with me on the remarkable work that has gone on here over the past twelve months. Glancing back fills me with admiration and amazement at the heavy lifting that is done around here by our wonderful committees with help from our staff.

The City Bar issued 191 reports in the past year and conducted approximately 325 non-CLE programs and 120 CLE programs. The work ranged from comments on proposed rules for the Commercial Division, to a brochure advising transgender patients of their healthcare rights, to a 70-page report concerning the rights of young people with disabilities in guardianship proceedings that will be published in a CUNY Law Journal, to up-to-the-minute programs on improving relations between police and the communities they serve.

Here’s a closer look at just a few of the areas where our efforts have been focused over the past year:

Access to Justice
We continue to advocate for increases in funding for civil legal services at all levels of government. In New York City, we have been part of the effort to provide a right to counsel for people facing loss of their homes in Housing Court. We believe providing counsel in these proceedings where tenants cannot afford a lawyer will be cost-effective for the City by reducing expenditures for maintaining the social safety net, including the cost of homeless shelters.

On the State level, we have been a consistent supporter of Chief Judge Jonathan Lippman’s efforts to add up to $100 million in civil legal services funding. We have also supported his pro bono efforts, including the requirement to report pro bono activities, the Pro Bono Scholars program, and facilitating pro bono for in-house counsel. The number of people handling matters in NY courts without a lawyer has dropped from 2.3 to 1.8 million people annually, but that’s still an enormous need not being met.

On the federal level, we again joined with our colleagues at the New York State Bar and with bar associations around the country to urge increased funding for the Legal Services Corporation.

Closer to home, in our Monday Night Law program, over 100 volunteers provide half-hour consultations to dozens of clients each week. The City Bar Justice Center recently started two new projects. In the Legal Assistance for the Self Represented program, staff and volunteers provide limited legal services to self-represented litigants. In the Federal Pro Se Legal Assistance Project (FEDPRO), the Justice Center works with the U.S. District Court for the Eastern District of New York to staff an office in the courthouse with an experienced attorney to provide limited, unbundled legal assistance.

Immigration
The City Bar Justice Center also is ready to gear up quickly if President Obama’s Executive Order that would allow millions of undocumented immigrants to remain legally in the country survives a court challenge.

Our Immigration and Nationality Law Committee has been at the forefront of support for federal legislation that would afford a right to counsel in deportation proceedings for children and the mentally ill. National Economic Research Associates provided us with a study on the costs and benefits of providing legal representation generally in deportation proceedings; the study concluded that the costs of such representation are balanced by the savings generated to government. Again, providing counsel to people in need is not only just but economically wise.

We also have been seeking a fair shake for consumers in debt. Our Civil Court and Consumer Affairs Committees have been working for many years to protect consumers, almost all of whom are unrepresented, from predatory lending and debt collection practices. In the past year we were delighted to see that the New York court system has promulgated rules of the type we have advocated that would inject more fairness into that process. However, there is more work to be done in this area as well.

Legislative
The City Bar is ramping up its legislative activity, particularly in the State Legislature and City Council. In the past year we issued 93 reports on legislation. Two pieces of legislation we originally drafted in complex areas of law were passed. We achieved a sorely-needed modernization of Articles 1, 7 and 9 of the Uniform Commercial Code, and a clarification and harmonization of New York laws with federal law related to guide, hearing, and service dogs.

We joined in the advocacy effort to add 25 Family Court Judges, the most significant increase in decades. Also with regard to children and families, a half-dozen committees collaborated on a report to raise the age of criminal responsibility in New York from 16 to 18 and there is some hope that the Legislature may act on this. Only New York and North Carolina have not raised the age.

On the ethics reform front, it was the City Bar, in a 2010 report, that made clear that requiring lawyer-legislators to disclose their clients, with limited exceptions, is not unethical. This advocacy led to limited disclosure of clients in the 2011 State ethics reform legislation. After the indictment of Assembly Speaker Sheldon Silver, we supported the effort to increase client disclosure for lawyer legislators that culminated in passage of additional reforms in this year’s State budget.

International
The Association continues to project itself internationally on a broad scope, through the 16 committees that focus primarily on international affairs plus the many others that address those issues as part of their mandate.

We communicated with leaders of nations that were depriving lawyers and human rights activists of their due process rights. Among the countries we focused on were China (including Hong Kong, where our letter in support of dissidents was featured in the English-language South China Morning Post), Russia, Nigeria, Uganda, Swaziland and the Democratic Republic of Congo. We have hosted delegations or individuals from Bangladesh, China, Japan, Malaysia, the Maldives, Nepal, Pakistan, and Spain seeking insights on how we deal with justice issues for application to their work back home. We also held public programs on international topics including climate change, migration in Europe, child soldiers, and pandemic diseases.

Among the great work of our Cyrus R. Vance Center for International Justice was the publication of a best-practices guide to protecting coral reefs in Latin America, and initiatives to secure marriage equality in Chile, Colombia, and Mexico, as well as an amicus brief with an international perspective to the U.S. Supreme Court on the marriage equality case now pending.

New Lawyers in a Changing Profession
Led by our Council on the Profession, we have been working to take action based on the findings in the landmark report of our Task Force on New Lawyers in a Changing Profession, issued in 2013 under the tireless leadership of my predecessor, Carey Dunne. The first project we launched was our New Lawyers Institute, which provided training, career guidance, and mentoring to 84 graduates from nine area law schools, seven of which were sponsors of the Institute. Supreme Court Justice Sonya Sotomayor addressed these new lawyers last month.

The Council on the Profession was in the midst of examining ways to improve the New York bar exam when Chief Judge Lippman proposed that New York adopt the Uniform Bar Exam (UBE). The Council supported this initiative and Council Chair Mark Morril testified and advocated for it before the committee established to study the issue. In his May 5th Law Day address, the Chief Judge announced that New York would institute the UBE as of July 2016. He also announced a procedure for evaluating the exam’s impact on different demographic groups, in a manner we had suggested.

Furthermore, the Council is urging the ABA’s Council on Legal Education and Admission to the Bar to change the rule that prevents the granting of credit to students whose externships are paid.  The current rule effectively prevents law students from getting credit for working in private sector externships, even if such programs meet rigorous academic requirements.

Diversity
On June 8th, the City Bar held its first annual Diversity & Inclusion Forum, featuring two dozen leaders in the legal profession, including five judges, general counsels from six companies, as well as professors and diversity experts. That program was followed three days later by our sold-out Diversity and Inclusion Celebration Dinner. We have strengthened our relationships with the affinity bars in the City by meeting quarterly with their leaders and providing a discounted City Bar membership rate for their members.

In addition to diversity in the demographic sense, we have also been working to increase practice diversity among our membership, notably by recruiting more in-house members. We held a reception for in-house counsel this fall, tweaked our dues structure to reduce dues for in-house lawyers, and recently met with general counsels in what will be an ongoing effort to attract in-house members and to meet their needs.

Focus on Practice and Lawyer Needs
Much of our committee work continues to focus on improving the practice of law. This past year, these efforts included comments on a wide range of federal and state court rules; a report on categorical privilege logs; a model form of non-disclosure agreement designed for merger transactions; and a model form of contract of sale for a condominium unit. And to flag one additional item, in 2010 our Council on Judicial Administration proposed a state court rule dealing with redacting confidential personal information from court filings. After several years of advocacy and work by the Council and several of our committees, such a rule was finally adopted this year, tracking in good part our initial recommendations.

In our ongoing efforts to support those practicing in our profession, I am pleased to report that our Lawyer Assistance Program, which helps hundreds of lawyers and their families each year with substance abuse and mental health issues, received a grant from the Office of Court Administration to continue its important work.

Ethics and Judiciary
Finally, our Professional Ethics Committee continues to offer its expertise on our ethics hotline, which assists about two dozen New York lawyers a week who call for ethical advice regarding their own prospective conduct. The committee also issued several formal opinions, including on cutting-edge topics like virtual law offices and Internet scams that got wide play in the legal media. And our Judiciary Committee reviewed the qualifications of 80 candidates for appointive or elective judicial office in New York City.

With apologies for all the great work I have neglected to mention here due to space limitations, I would like to thank our members and staff for a great year at the City Bar.

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

 

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The New York City Bar Association’s Committee on Professional Ethics has issued Formal Opinion (2015-4), stating that attorneys who act as “local counsel” are subject to the same ethical rules as all lawyers. Local counsel may circumscribe their role, however, by entering into an agreement to limit the scope of representation, provided the agreement complies with Rule 1.2(c) of New York Rules of Professional Conduct.

“It is the attorney’s obligation to communicate to the client any limits on the scope of the representation, rather than to rely on undefined terms, such as ‘local counsel.’ Any limitations to the scope of representation must be reasonable under the circumstances and the client must give informed consent,” states the Opinion. Local counsel must also comply with any relevant court rules governing the responsibilities of counsel.

Lawyers have traditionally used the designation “local counsel” to describe an attorney who provides assistance on a matter within their jurisdiction, while the attorney primarily responsible for the matter, or “lead counsel,” practices in a different jurisdiction. Yet the New York Rules do not distinguish between different categories of lawyers. All lawyers are ethically obligated to provide “competent” and “diligent” representation to their clients (Rules 1.1 and 1.3), and merely being designated as “local counsel” does not necessarily limit the attorney’s role or narrow their ethical obligations. Consequently, states the Opinion, “an attorney who agrees to act as local counsel may be subjected to obligations and risks that she does not anticipate or intend to assume.”

New York attorneys may reduce some of these risks by entering into an agreement to limit the scope of representation under Rule 1.2(c), which does not absolve a lawyer from her ethical duties, but rather “narrows the universe within which those ethical obligations apply,” by limiting the lawyer’s role in the matter and specifying the lawyer’s tasks. As the Opinion notes, “A written agreement that clearly limits the role of local counsel can benefit all parties by managing expectations, avoiding misunderstandings about the scope of the lawyer’s responsibilities, minimizing disputes over the allocation of responsibility between lead counsel and local counsel, and managing costs.”

Local counsel are obligated to ensure that their role is clearly defined, and that any limitations on the scope of representation are communicated to the client and the client gives “informed consent,” as stated in Rule 1.2(c). “Preferably, local counsel will enter into an independent written retainer agreement with the client,” notes the Opinion. Nevertheless, “given the long-standing, customary practice of lead counsel acting as intermediary between local counsel and the client, we believe a written agreement between local counsel and lead counsel may fulfill the requirements.”

Although Rule 1.2(c) gives lawyers and clients significant flexibility in defining the scope of representation, any limitations must be “reasonable under the circumstances.” As noted in Comment [7] to the Rule, “an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation.” Also, certain ethical obligations may not be limited by contract. “For example, a lawyer may not agree to circumvent rules concerning candor to the court or to third parties,” states the Opinion. “In addition, the lawyer should consider the impact of local court rules, as well as the judge’s individual rules and procedures, on the scope of representation.” For example, many judges require that an attorney with knowledge of the case appear at all conferences. In the event that local counsel represents a client at court conferences, she would be required to have “sufficient knowledge of the case to comply with these requirements, regardless of the terms of her retainer agreement,” states the Opinion.

“Having assumed responsibility for certain tasks, local counsel is obligated to keep the client informed of any developments relating to those tasks,” according to the Opinion. “The limited scope agreement should specify who will be responsible for communicating with the client about these tasks. Assuming the agreement delegates that role to lead counsel, local counsel may reasonably rely on lead counsel’s representations that he has conveyed the information to the client. Nevertheless, local counsel cannot completely abdicate responsibility for ensuring that the client receives the information. In our view, such a limitation would not be reasonable under the circumstances. Therefore, if local counsel knows or has reason to know that lead counsel is not adequately updating the client concerning the case, she must take steps to remedy the omission, even if it means bypassing lead counsel and communicating directly with the client.”

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

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The New York City Bar Association will host its inaugural Diversity & Inclusion Forum on Monday, June 8th. The all-day event will feature two dozen leaders in the legal profession, including five judges, General Counsels of six companies, and diversity and inclusion experts and scholars. The program will include workshops on implicit bias, retention and sponsorship, diversity in the judiciary, and the pipeline to the profession. Ritu Bhasin and Professor Kenji Yoshino will present on cultural competence, retention and implicit bias, and Verna Myers will provide the luncheon keynote. CLE credit is available.

The annual General Counsels Forum will be moderated by Joseph K. West, President and CEO of the Minority Corporate Counsel Association, Inc. (MCCA) and panelists include Ricardo Anzaldua of  MetLife, Inc.; Susan L. Blount of Prudential Financial, Inc.; Michele Coleman Mayes of the New York Public Library; Don H. Liu of Xerox; Gwen Marcus of Showtime; and Mark Roellig of MassMutual.

The panel on diversity in the judiciary will feature federal and state judges including Hon. Sheila Abdus-Salaam of the New York Court of Appeals; Hon. Pamela K. Chen of the U.S. District Court, Eastern District of New York; Hon. Denny Chin of the U.S. Court of Appeals, Second Circuit; and Hon. Analisa Torres, U.S. District Court, Southern District of New York. Hon. Rosalyn H. Richter of the Appellate Division, First Department will moderate.

Arun Alagappan of Advantage Testing Foundation; Elaine M. Chiu of St. John’s University School of Law; Kent D. Lollis of the Law School Admission Council (LSAC) and James O’Neal of Legal Outreach will discuss successes and challenges in the effort to increase the pool of diverse talent in the profession.

James G. Leipold, Executive Director of the National Association for Law Placement, Inc. (NALP) and Bret Parker, Executive Director of the New York City Bar Association, will provide an update on the recent data regarding diversity in the profession to kick off the day’s events.

For more information, click here.

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