We are encouraged that Governor Cuomo has proposed substantial legislation to improve voter participation and election procedures; limit the influence of money in campaigns, including the establishment of a strong public financing system; and combat corruption by public officials. The Legislature should address these important initiatives before the close of this legislative session.  Repeated abuses and illegal actions have brought into question the integrity and accountability of our state government, and voters wonder whether New York lawmakers are focused on the public interest rather than their self-interest. Enacting meaningful reform now would send the message that the government is listening and responding to these widespread concerns.

 

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When we and our co-sponsors announced that we would host a forum for the New York City Mayoral candidates here at the City Bar on June 6th, the response was a great measure of our members’ engagement. The interest in the event was so overwhelming that it ‘sold out’ almost immediately. Similarly, when we released the City Bar’s 95-page “Policy Recommendations for New York City’s Next Mayor,” the report was downloaded nearly 2,000 times on the first day. That level of involvement by our members in these substantive issues is not surprising, given that this is the first mayoral campaign without an incumbent since the days following the September 11th attacks.

You can watch a video of the forum here and read the New York Law Journal’s article on it here. But I hope you will also take the time to read our report. It was designed to be accessible to a wide audience, and written by lawyers who are dedicated citizens and, above all, New Yorkers.

What’s notable about the report, which reflects the work of some two dozen City Bar committees, is the depth and breadth of the topics covered. At the risk of leaving out your favorite issue—again, I urge everyone to read the full report—what follows is just a sample of the topics covered.

The section on education offers specific suggestions to improve school closure policies, reform the teacher disciplinary hearing process, reduce bullying and harassment in schools, and reduce teen dating violence. Several recommendations cite programs already in place and suggest that greater success would result from better communication. For example, better data reporting, outreach and education would be helpful in implementing the Dignity of All Students Act, as they would help engage parents, a core constituent group currently left out of the implementation process.

Several of the City Bar’s recommendations underscore the importance of New York’s policies in setting an example for the nation and even the world. Climate change is one such area, with the report providing ways for the incoming Mayor to encourage and incentivize City residents and commuters to reduce their carbon footprint. The report also asks the Mayor to support energy efficiency and renewable energy, accelerate the work of the Green Codes Task Force, and affirm his or her commitment to long-term PlaNYC goals. A focus on environmental justice would help mitigate Superstorm Sandy’s disproportionate impacts on disadvantaged communities, while taking steps to enforce mandatory evacuations and implement “reverse 911 calls” would help prevent casualties in the next storm.

Another area in which the report advocates a continued leadership role for New York City is gun control. “Mayor Bloomberg’s leadership role in this area should not be for naught. He has created an opportunity that we can ill-afford to squander,” the report states in outlining specific recommendations.

The report also urges the next Mayor not to await court decisions to address the hot topic of Stop and Frisk. Rather, he or she should take steps to improve police training and measure performance qualitatively, not quantitatively, to better assure these stops are made in compliance with the law. Related steps the new Mayor should champion include changing the law regarding marijuana possession, a pilot project to video-record Stop and Frisk activity, independent monitoring of the NYPD, and the tracking of lawsuits against the NYPD to help identify problem officers.

Calling New York City the “great equalizer” of public transportation, the report recommends that the new Mayor consider an alternative to the “Taxi of Tomorrow” that is accessible to the handicapped. Citing speeding as the cause of more vehicular homicides than drunk and cell-phone-using drivers combined, the report proposes an enhanced speed cameras program. And the report urges the new Mayor to rein in the tens of thousands of counterfeit parking placards that make finding a parking spot so hard for everyone else.

Increasing access to justice by funding legal services for the City’s poorest residents actually benefits the entire City’s economy, the report argues, by saving funds for shelter and other services and by equipping families to contribute to the City’s economy. Supporting the Paid Sick Time Act would also protect the social welfare and equal participation of all New Yorkers, as would expanded consumer protections in troubled sectors including used car dealers, debt collectors and debt relief companies.

As you can see, not unlike New York City itself, this report has something for everyone. We hope it will inform the public dialogue as the campaign continues between now and November. The ever-increasing number of candidates’ forums—there have been over 40 already by some counts—has become something of a running joke on the campaign trail. “Errol, I’m starting to be really concerned I’m spending more time with you than I am with my wife these days at these forums,” Democratic candidate William Thompson told moderator Errol Louis at our forum.

On the other hand, it would take a good deal many more forums to cover all the issues in the City Bar’s recommendations alone, let alone the issues of concern to other groups and individuals, and having the candidates delve deeper into a wider variety of policy issues would be time well spent on behalf of all of us in New York City.

Carey R. Dunne is President of the New York City Bar Association.

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I am truly excited as I begin working on your behalf as Executive Director of the City Bar. As a member of the Association for 17 years, like many of you I have attended events at the City Bar that interested me, taken CLE courses to improve my knowledge and skills, participated in committee work to address important issues, performed pro bono service and met other City Bar members to develop my professional network while making close friends along the way. If you’d like to know more about me, please click here.

I have a profound respect for the deep roots of this organization and the excellent work of my predecessor, and we belong to an organization worthy of great pride. I do not intend to fix what is not broken.

However, the profession and our world are changing faster than ever. Organizations must adapt in order to remain healthy and relevant to all of its current and future members. I am committed to applying my experience and skills to collaborate with our President, Carey Dunne, and our talented staff to examine, and where necessary change, how we do certain things and to create new initiatives that will benefit the Association and our membership. The great breadth of our membership (including new lawyers and established lawyers, big-firm lawyers and in-house lawyers, students and academics, government lawyers and solo practitioners) is both our strength and our challenge if we are to meet all of our members’ needs. There is an extraordinary amount of activity going on here, but we need to communicate these offerings effectively so you can learn about all we have to offer and take advantage of the opportunities available to our members. It will take some managing to ensure that the City Bar remains the preeminent bar association for the 21st Century, as it has been in the last two centuries, but I am certain that we will succeed.

Over the past couple of years, through our Executive Committee, the City Bar has engaged in a strategic planning initiative to ensure that any steps we take are on the right track. Through research, surveys and interviews of our members and non-members, the Executive Committee formulated the following mission for the Association:

  • Harnessing the expertise of the legal profession to identify and address legal and public policy issues in ways that promote law reform, ethics and the fair and effective administration of justice, and a respect for the rule of law at home and abroad.
  • Elevating the profession by enhancing diversity and encouraging appropriate standards of professional and judicial ethics, competence, civility, and integrity.
  • Addressing unmet legal needs, especially the needs of traditionally disadvantaged groups and individuals.
  • Mobilizing the legal profession to engage in activities that promote social justice, human rights, and democratic values and principles.
  • Supporting individual attorneys through professional development, assistance, continuing legal education, programs, written reports, presentations of professional and public interest, networking and career opportunities, and service on committees.

These are all important goals, but the devil is in the details. I plan to do a lot of thinking and listening over the summer, and I encourage your input. What is the City Bar doing that is critical and shouldn’t change? What, if any, are the changes you would like to see in the City Bar? How can we better serve and communicate with you? How can we better serve the public? This is your Association, so please feel free to email me here. I intend to read every response.

In the meantime, I look forward to seeing you around the House of the Association.

Bret I. Parker is Executive Director of the New York City Bar Association

 

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The New York City Bar Association, through its Committee on Immigration and Nationality Law, continues to monitor and assist Congressional deliberation of the immigration reform bill, the “Border Security, Economic Opportunity, and Immigration Modernization Act” (S. 744). As the Senate began floor debate of the bill, the City Bar reaffirmed its positions on several key amendments, opposing unnecessary detention and obstacles to citizenship and supporting recognition of same-sex partnerships.

Specifically, Senator James Inhofe’s (R-OK) Amendment 1203 repeats the language of Senator Charles Grassley’s (R-IA) Amendment 53, previously introduced and defeated in the Senate Judiciary Committee after City Bar’s opposition. In a letter dated May 13th, the City Bar cautioned that this amendment would undo crucial “S. 744 reforms [reducing] cruel, costly, and unnecessary over-detention of immigrants and families who pose little risk” by expanding mandatory detention “regardless of risk or cost.”

Additionally, the City Bar opposes Senator Michael Lee’s (R-UT) Amendment 1213, which repeats the language of Senator Lee’s earlier Amendment 11. Amendment 1213 eliminates any possibility of waiving the $1,000 Registered Provisional Immigrant penalty. As the City Bar warned in its May 29th letter, this unnecessarily “frustrates integration of the undocumented into the U.S. workforce” and cruelly “prevents any immigrant from claiming…economic hardship, illness, age, [or] need for family support” in requesting a waiver.

However, the City Bar urges adoption of Senator Patrick Leahy’s (D-VT) Amendment 1182—the Uniting American Families Act—which reiterates the language of Senator Leahy’s previous Amendment 7. This establishes equality in immigration reform for same-sex spouses and permanent partners. As the City Bar noted in its May 15th letter, the Amendment is laudable for both equality and economics. It would “provide long-overdue recognition of the diversity of families and the fundamental rights of individuals in committed marriages and permanent partnerships,” the City Bar stated. “Moreover, these amendments have economic benefit, in encouraging all U.S. citizens and residents to live and work in America.… In our global economy, we should not disadvantage U.S. residents and their partners from seeking opportunities, abroad or at home.”

The Committee on Immigration and Nationality Law will continue to monitor S. 744 throughout the floor debate.

The letters can be read at the following links:
http://bit.ly/16ftsYm (May 13th)
http://bit.ly/1222JNV (May 15th)
http://bit.ly/13xUmqg (May 29th)

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The New York City Bar Association, through its Committee on Immigration and Nationality Law, continues to assist Congressional deliberation of the immigration reform bill, the “Border Security, Economic Opportunity, and Immigration Modernization Act” (S. 744). As the Senate Judiciary Committee considered the bill, the City Bar rapidly analyzed and opposed 15 amendments filed to S. 744 that would have rolled back the bill’s essential due process and detention reforms, frustrated a fair path to legalization, and increased criminalization of immigration laws. None of the amendments that the City Bar opposed passed, including three introduced and debated openly by the Judiciary Committee. The City Bar’s analysis built upon its prior advocacy for appointed counsel and reduced detention in immigration reform, in two April 24th letters available here and here.

First, in a letter dated May 13th, the City Bar opposed nine amendments that would have eliminated crucial “S. 744 reforms [reducing] cruel, costly, and unnecessary over-detention of immigrants and families who pose little risk,” and promoting alternatives to detention such as tracking bracelets and community-based supervision. Particularly, Senator Charles Grassley’s (R-IA) Amendment 47 would have struck due process protections for immigrant detainees such as bond hearings and time limits on detention. (As the City Bar previously pointed out, nine in ten Americans support time limits on detention before seeing a judge.)  Amendment 47 was defeated by a near-unanimous vote in the Judiciary Committee.

Additionally, Senator Jeff Sessions’ (R-AL) Amendment 12 would have mandated a higher artificial minimum of $5,000 bond for certain immigrants, including asylum seekers. The City Bar opposed this amendment, arguing that “[h]igh bail is unfair to those without money.” Indeed, immigration bonds already are “far higher than those for criminal defendants, even though immigrants are less dangerous.” Amendment 12 also failed in the Judiciary Committee.

An additional letter, dated May 29th, opposed six additional amendments that would have frustrated a fair path to legalization, struck immigrant integration initiatives, and increased the criminalization of typically civil immigration laws. Particularly, Senator Grassley’s Amendment 45 sought to expand criminal penalties, eliminate intent requirements, and remove exceptions for minors regarding crimes of illegal entry, reentry, and passport fraud. The City Bar called Amendment 45 “unnecessary,” and noted increased criminal enforcement would disproportionately increase the costs of immigration reform.  Amendment 45 was also defeated in the Judiciary Committee.

The Committee on Immigration and Nationality Law will continue to analyze S. 744 as it moves to full Senate consideration.

The letters can be read at the following links:

http://bit.ly/16ftsYm

http://bit.ly/13xUmqg

 

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If a lawyer discovers after the close of a proceeding that material evidence offered by the lawyer, the lawyer’s client, or witness called by the lawyer during the underlying civil or criminal proceeding was false, the lawyer is obligated, under Rule 3.3(a)(3), to take “reasonable remedial measures,” states a formal Opinion from the New York City Bar Association’s Committee on Professional Ethics (Formal Opinion 2013-2).

Remedial measures include disclosing the false evidence to the tribunal to which the evidence was originally presented, or if it is not possible to reopen the proceeding based on this, disclosing the false evidence to opposing counsel where another tribunal could amend, modify, or vacate the prior judgment.

As the Opinion notes, Rule 1.6 of the New York Rules of Professional Conduct, with limited exceptions, prohibits a lawyer from revealing “confidential information,” which the rule defines as “information gained during or relating to the representation of a client, whatever its source” that is (a) protected by the attorney client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. However, in April 2009, when New York adopted the Model Rules format and amended a number of its rules, the courts promulgated Rule 3.3(c), mandating that under certain narrow circumstances the lawyer’s duty to protect the integrity of the adjudicative process trumps the lawyer’s duties of confidentiality and loyalty to the client. Indeed, “unlike in other jurisdictions, Rule 3.3 is the only mandatory exception in New York to the obligation of confidentiality contained in Rule 1.6,” the Opinion states.

Still, the duty to act is only required if the discovered evidence is “material” to the underlying proceeding. This determination is fact specific, depending on the factors relevant to the ruling, and particularly whether the evidence is of a kind that could have changed the result. If the false evidence is determined to be material, notes the Opinion, “it makes no difference if the falsity was intentional or inadvertent.”

Before taking further action, the lawyer should first remonstrate with the client and seek the client’s cooperation in making a disclosure that will correct the record. Where the original tribunal is not empowered to consider the new evidence and modify, amend, or vacate the prior judgment, but another tribunal is able to do so, the attorney may disclose the false evidence to the opposing counsel in the original proceeding, or if opposing counsel no longer represents said party and there is no successor counsel, to the opposing party, and this disclosure will constitute a reasonable remedial measure.

“The attorney who learns of the false evidence is not usually required to start a new proceeding before a new tribunal. Rather, the opposing counsel or party to whom disclosure is made should determine whether it is appropriate to begin a new proceeding based on the new information,” states the Opinion.

Rule 3.3 is silent on when the obligation to take remedial action ends. The Committee believes that under Rule 3.3(a)(3) the obligation survives the ‘conclusion of a proceeding’ where the false evidence was presented, and that “the courts’ rejection of an explicit statement that the obligation ends when the proceeding ends, makes it evident.” The State Bar ethics committee has reached the same conclusion. Thus, the obligations of a lawyer end only when a reasonable remedial measure is no longer available.

The Opinion states, “although disclosure may have grave adverse consequences for the client (in some instances including prosecution for perjury), the alternative – for the lawyer to become a willing participant in ‘deceiving the court [and] thereby subverting the truth-finding process’ – is untenable.”

The Opinion can be read here: http://bit.ly/15pyNZ5

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In a letter to the U.S. Senate Judiciary Committee, dated May 15th, the New York City Bar Association, through four of its Committees, urges the Senate to provide equality in immigration reform for same-sex spouses and permanent partners. Although the Senate Judiciary Committee declined to do so in the bill it forwarded, the City Bar reiterates its longstanding support, in any House or Senate immigration reform legislation, for family reunification that equally recognizes same-sex spouses and permanent partners.

The May 15th letter specifically urges the adoption of Senator Patrick Leahy’s Amendments 6 and 7 to the “Border Security, Economic Opportunity, and Immigration Modernization Act” (S. 744).  These Amendments echo the “Uniting American Families Act” (H.R. 519), which New York Representative Jerrold Nadler introduced in the House with 130 co-sponsors in 2012.

Lenni Benson, Chair of the City Bar’s Immigration and Nationality Law Committee, said, “Today, because immigration laws do not recognize committed same-sex spouses nor permanent partnerships, thousands of American families are cruelly kept apart. We ask that federal immigration law respect our New York state law and the laws of other states that recognize same sex marriage.”

The City Bar supports the Leahy Amendments for reasons of both equality and economics. “We urge the adoption of Sen. Leahy’s Amendments 6 and 7, and the passage of S. 744 generally, to provide long-overdue recognition of the diversity of families and the fundamental rights of individuals in committed marriages and permanent partnerships,” states the letter. “Moreover, these amendments have economic benefit, in encouraging all U.S. citizens and residents to live and work in America….In our global economy, we should not disadvantage U.S. residents and their partners from seeking opportunities, abroad or at home.”

In addition to supporting immigration equality for same-sex partnerships, the City Bar supports appointed counsel and reduced detention in any comprehensive immigration reform.

The May 15th letter was signed by the Chairs of the City Bar Committees on Immigration and Nationality Law, Sex and the Law, LGBT Rights, and Civil Rights.

The May 15th letter can be read here: http://bit.ly/1222JNV

The Leahy Amendments to S. 744 can be read at the following links:
Amendment 6: http://1.usa.gov/Z3B0bw
Amendment 7: http://1.usa.gov/12QFTVW

 

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A report on a February research visit to Montenegro by a four-member team from the Swedish and New York City Bar Associations has found that while the laws governing the press are generally satisfactory, “the relationships between the independent press and the government and between the independent press and pro-government press are permeated by polarization and antagonism.”

In addition, the report found, “The government continues to influence the marketplace for news through its ownership of a daily paper and its placement of a high volume of advertising in favored media. Certain incidents of violence against journalists have not been adequately investigated, and the number of libel suits remains a concern. In addition, independent observers repeatedly noted that the lack of clear ethical standards or a generally accepted self-regulatory body undermines the quality of journalism in Montenegro.”

The objective of the research was to assess the extent to which Montenegro’s legislation and enforcement comply with international and regional standards on freedom of the press, in particular in view of Montenegro’s pending application for accession to the European Union. The report, titled “Independent Legal Mission to Study Press Freedom in Montenegro,” was based on interviews and meetings with publishers, journalists, government officials, lawyers, and representatives of the international community and civil society. The research team was comprised of David Cook and David McCraw from the New York City Bar Association and Christian Ahlund and Lars Viklund from the Swedish Bar.

As detailed in the report, the assessment led to these conclusions and recommendations:

I. A lack of transparency has undermined trust and created an environment that makes it difficult for a free press to function.

1. Greater transparency is needed as to how acts of violence against journalists and other media representatives are being investigated and prosecuted.

2. Greater transparency is needed concerning the operation of the court system in its handling of libel cases.

3. Greater transparency is needed into government financial support of Pobjeda [the government-owned newspaper].

II. Libel litigation remains a concern, and close public monitoring of the court system is needed to ensure that European Court of Human Rights decisions are implemented to discourage frivolous and politically-motivated lawsuits and to identify areas where further law reform is needed.

III. While a voice in support of the dominant political party is an important element in the marketplace of ideas, government financing of a newspaper (whether directly or through inordinate amounts of advertising) creates conditions for the abuse of power and the further entrenchment of the government.

IV. The failure of the news industry to create a true self-regulatory body underscores the need for both an accepted code of ethics and independent private-sector monitoring institutions to promote ethics, address citizen complaints, and use the power of publicity to spotlight ethical misconduct and elevate standards.

The study was sponsored by the City Bar’s Cyrus R. Vance Center for International Justice and Committee on Communications and Media Law, in conjunction with the Swedish Bar Association.

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

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