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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Alan Rothstein will not like this column, because it’s all about him. Actually, he’ll probably hate it because it’s about him at all.

In case you haven’t heard, Alan Rothstein, our General Counsel, is retiring after thirty years at the New York City Bar Association. And what do you think Alan said when we pried a quote out of him for our announcement of his retirement? He said he would miss “the terrific staff” and “the many, many volunteers who completely dispel the notion that lawyers do not give back to their community.”

How very Alan, trying to make it about others. Alan Rothstein would have the world’s lowest score on the Full-of-Himself Index, if there were such an index. It’s hard even to find a photo of Alan because he’s always jumping out of the shot, which is quite the feat since we can’t remember when he hasn’t been at the center of the action around here.

While he’s been a great General Counsel, Alan has been so much more than that. He’s also been an extraordinary general counsel, lower case if you will, and that’s why he’s had such a profound effect on everyone with whom he’s worked. Ask people about Alan and you’ll hear: “He treats everyone the same.” “He always makes time for me no matter how busy he is.” “Alan helped me get it done.” “When he dabbles in my area, he does it better than I do.” “His fingerprints are all over this building.”

Space constraints prohibit a full accounting of Alan’s accomplishments, but any list would have to begin with those blurry days and weeks after 9/11, with the trainings of volunteer lawyers and the clinics for victims’ families. Who would you want rather than Alan to communicate and coordinate with the Mayor’s office and city agencies during a crisis? Talk to people at the City Bar Justice Center who were in the thick of it and they’ll describe Alan at the time, quintessentially, as being both ubiquitous and insistently behind the scenes.

The City Bar has long benefited from Alan’s core passions for civil liberties and good government. In the years following 9/11, quick to recognize the unique historical moment upon us in the tension between national security policy and civil rights, Alan guided the City Bar’s response in creating the Task Force on National Security and the Rule of Law. “He brings together law, policy, and action,” is how a colleague describes what Alan does.

Bravo, but if you’re wondering what makes Alan tick, look not to the high-profile but to the low-profile work. Because if Alan treats everyone the same, he also treats all of the work the same – with excellence, patience, persistence, and any other admirable quality you can think of. After praising everyone else’s work, here’s the other thing Alan said about his retirement: “I have been incredibly lucky to work in an organization of such high integrity that is so focused on serving the legal profession and, to me more significantly, the public interest.”

This, I believe, is the key to Alan’s work ethic. When Alan guides a committee report from conception to completion; or when he nurtures a new department like the Office of Diversity and Inclusion; or when he troubleshoots an issue at the Vance Center, he’s not pushing paper and dealing with people. He’s upholding the rule of law and increasing access to justice. He’s carrying out the mission of the New York City Bar Association and the highest principles of our profession. This mission-imbued approach to office work, this ethic that all the work, even the most prosaic, is important and, if done right, adds up to make a difference, appears to be what  makes Alan tick.

Everyone is in a bit of denial about Alan’s leaving. We’ll miss his wise counsel, his puckish humor, and his reassuring presence by the Meeting Hall door. But we’ll be fine, because he showed us what to do and how to do it. Plus we’ll reassign his responsibilities to four colleagues, hire two more lawyers, and mobilize the whole crew that it will take to fill his shoes.

And, if you’re fretting that Alan will be the type of person who doesn’t know what to do with himself in retirement, don’t worry, Alan will be fine, too. He will take a good long break, immerse himself in his next chapter, and then find new ways to do what he’s always done—express his values, exercise his ethical muscles, and make the world a better place—including by serving on a City Bar committee.

And with that, in conclusion, a tip to readers and fair warning to Alan: Following the summer of 2015, when he no longer works here, the next time you see Alan Rothstein at the City Bar, and you will see him, his longstanding no-hug policy will no longer be enforceable.

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

Editor’s Note: The City Bar’s Executive Committee has voted to present Alan Rothstein with the Association Medal for exceptional contributions to the honor and standing of the bar. He will be the 25th recipient, since 1952, of the Association Medal.

 

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The New York City Bar Association has announced the results of its annual election to fill its leadership positions:

Debra L. Raskin, Vladeck Waldman Elias & Englehard PC, returns as President.

David M. Brodsky, Brodsky ADR LLC, returns as Vice President and is joined by Hon. Sheila Abdus-Salaam, Associate Judge, New York Court of Appeals and Eruch (“Elchi”) P. Nowrojee, the Carlyle Group.

Damian Schaible, Davis Polk & Wardwell LLP, joins the Executive Committee as Treasurer.

Ona T. Wang, Baker & Hostetler LLP, returns as Secretary of the Association.

The Executive Committee Class of 2019 is: Jordan Backman, Sony Corporation of America; Pui Chi (P.C.) Cheng, Law Offices of Cheng & Associates PLLC; Muhammad Faridi, Patterson Belknap Webb & Tyler LLP; Hon. Edgardo Ramos, Judge, United States District Court, Southern District of New York.

Elected to the Executive Committee Class of 2018 is Sarah L. Cave, Hughes Hubbard & Reed LLP, who previously had been appointed to the Executive Committee to fill a vacancy in the Class of 2015.

Hallie B. Levin, Friedman Kaplan Seiler & Adelman LLP, will serve as Chair of the Executive Committee and Carmelyn Malalis, Commissioner of the New York City Commission on Human Rights, will serve as Secretary of the Executive Committee.

The City Bar’s Executive Committee consists of 16 elected members, and six officers (who are ex officio members). The elected members of the Executive Committee are divided into four classes of four members each, with each class holding office for four years.

In keeping with the City Bar’s diversity objectives, of the 22 members, 12 are male and 10 are female; and just over 40% (9 of the 22) are from historically underrepresented groups.

View the officers and members of the Executive Committee here.

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The New York City Bar Association has written to the American Bar Association urging that the prohibition on law schools giving academic credit to students who work for private employers be eliminated, primarily because “it greatly restricts the number of opportunities for experiential learning, prevents the student from being paid for valuable work and lacks justification.” The Council of the ABA’s Section of Legal Education and Admissions to the Bar sets accreditation standards for law schools in the United States.

As the letter states, law school applications have substantially decreased over the past ten years, while tuition and student debt have risen. Law school revenue has been declining, as have job prospects for law students. In response to this crisis, the City Bar created the Task Force on New Lawyers in a Changing Profession, which, among its recommendations, suggested that law schools focus on the goal of training more “practice-ready” graduates, by experimenting with different changes to the curriculum. The Task Force urged the development of “Bridge to Practice” programs that provide dynamic, practical experience for third-year law students.

“It is self-evident that employment prospects for graduating third-year law students would be substantially enhanced if students, in addition to their classroom education, had greater opportunities to work for legal employers in a supervised, academically-linked setting before graduation,” states the letter. “The program would be designed to assist students in building real lawyering skills, becoming more marketable after graduation, creating jobs with employers who might otherwise hire only laterally, compensating students in some instances, and in any event ultimately helping to mitigate the high cost of law school.”

Still, despite the expressed willingness of several private employers to participate in Bridge to Practice programs, efforts to implement them in the private sector have been greatly limited due to ABA Standard 305 and Interpretation 305-2, which states that “A law school may not grant credit to a student for participation in a field placement program for which the student receives compensation.”

Yet, as the letter explains, “under the Fair Labor Standards Act (“FLSA”) private employers are (practically speaking) required to pay student interns. Thus, a law student can work for a government or non-profit law office, which is not subject to the FLSA, and can gain both academic credit and valuable experience with the potential for future employment with that employer. However, that same student cannot have the same experience working for a private sector employer who, to avoid violating the FLSA, would have to pay the student, thereby preventing that student from receiving academic credit for the employment experience.”

A well structured program involving private employers, notes the letter, “would provide the experiential learning opportunities so needed by law students without undercutting any of the objectives of a sound legal education,” as each individual law school would have the discretion to assess whether the placement is sufficiently educational to earn academic credit, or whether to implement a program such as this at all.

The letter concludes, “We respectfully recommend that the ABA eliminate this prohibition completely and allow a student who works for an employer in an approved program to receive both academic credit and compensation.”

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

 

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The New York City Bar Association has announced the winners of this year’s Kathryn A. McDonald Awards, which are presented annually for excellence in service to the Family Court.

This year’s honorees, Stephanie Jill Gendell and Brian Zimmerman, have dedicated their abilities and leadership skills throughout their careers to the Family Court and the population that it serves.

Gendell currently serves as the Associate Executive Director for Policy and Government Relations at the Citizens’ Committee for Children of New York, Inc. (CCC). Zimmerman is an attorney practicing in New York City Family Court, including as Assigned Counsel.

The awards will be presented at a City Bar reception on May 26th at 6 p.m., by Hon. Jonathan Lippman, Chief Judge of the New York State Court of Appeals. The reception also honors the judges of the New York City Family Court for their dedicated work.

The Kathryn A. McDonald Award is named in honor of the former Supervising Judge of the New York City Family Court and is sponsored by the City Bar’s Committees on Children and the Law; Family Court and Family Law; Juvenile Justice; Domestic Violence and its Council on Children.

 

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