The New York City Bar Association has evaluated candidates recommended by the New York State Commission on Judicial Nomination for appointment as Associate Judge of the New York Court of Appeals, to fill the vacancy created by the expiration of Judge Graffeo’s term.  The Association uses a three-tiered rating system to rate the candidates: exceptionally well qualified, well qualified and not well qualified.  The following are our ratings of the seven candidates:

  • Daniel S. Alter – Well Qualified
  • Preeta D. Bansal – Exceptionally Well Qualified
  • Hon. Eugene M. Fahey – Well Qualified
  • Hon. Victoria A. Graffeo – Exceptionally Well Qualified
  • Hon. Leslie E. Stein – Well Qualified
  • Maria T. Vullo – Well Qualified
  • Rowan D. Wilson – Well Qualified

The Association’s Executive Committee extensively reviewed the background and qualifications of the candidates.  Representatives of the Association’s Executive, Judiciary and State Courts of Superior Jurisdiction Committees interviewed each candidate and, for all candidates, reviewed their writings, investigated their background, and interviewed judges and lawyers familiar with the candidates.  After considering the candidate’s intellectual ability, knowledge of the law, integrity, impartiality, judicial demeanor and temperament, the full Executive Committee then considered whether to rate each candidate “well qualified,” “not well qualified” or “exceptionally well qualified.”

This three-tiered rating was adopted by the Executive Committee in May 2007.  The criteria for each rating are as follows:

“Well Qualified”:  Consistent with the term “well qualified” as it is set forth in describing the Commission’s mandate in Judiciary Law Section 63(1) and in Article 6, Section 2 of the Constitution: candidates “who by their character, temperament, professional aptitude and experience are well qualified to hold such judicial office.”

“Not Well Qualified”:  Candidates who may be competent lawyers or judges but, in the judgment of the Executive Committee, do not meet the requisite standard for “Well Qualified” in one or more of the constitutional and statutory criteria of “character, temperament, professional aptitude and experience.”

“Exceptionally Well Qualified”:  Candidates who are exceptional to the degree that they are superior to others who are “well qualified.”  This rating should be given as an exception and not the norm.

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

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At the New York City Bar Association, we consider one of our strengths to be the close collaboration between our committees, which have long worked to reform the law and improve public policy, and the City Bar Justice Center, which provides pro bono legal services to those who can’t afford a lawyer.

This symbiotic relationship is only natural, because the Justice Center—which grew out of the City Bar’s Robert B. McKay Community Outreach Law Program —has its roots in the work of certain of our committees in the early 80s. One of them, the Immigration and Nationality Law Committee, co-sponsored day-long clinics where volunteer lawyers helped Haitians with asylum claims. After a 1986 law offered undocumented immigrants a one-year amnesty to apply for residency, the Committee trained volunteer lawyers to staff clinics for applicants at neighborhood associations and churches.

While the Justice Center’s immigration projects have worked closely with the Immigration Committee over the years, the Justice Center’s leadership has been integrally involved in policy as well. Suzanne Tomatore, who directs the Justice Center’s Immigrant Women & Children Project, is on the steering committee of the Freedom Network, a national anti-human trafficking organization. Jennifer Kim, who directs the Justice Center’s Refugee Assistance Project, is a member of Judge Robert A. Katzmann’s Study Group on Immigrant Representation, as is Justice Center Executive Director Lynn Kelly.

If there has been a common thread in all of the City Bar’s immigration work over the years, it is with respect to the issue of legal representation for immigrant detainees, who have no right to an attorney even though they face consequences as serious as those affecting many criminal suspects who are entitled to counsel by law. In 2008, Lynn Kelly received an envelope containing a petition from 100 immigrant detainees decrying conditions at the Varick Street Federal Detention Facility in lower Manhattan. Teaming up with the American Immigration Lawyers Association and The Legal Aid Society, the Justice Center launched the NYC Know Your Rights Project, sending volunteer attorneys into the facility to interview detainees. The Justice Center and its volunteers found that 39% of the detainees had possible meritorious claims for relief from deportation, and volunteer lawyers won release for 21 detainees and cancellation of removal claims for 18 of them. In what was not an extraordinary coincidence, the Immigration and Nationality Law Committee released a report right around that time entitled “Report on the Right to Counsel for Detained Individuals in Removal Proceedings.” The Justice Center’s work on Varick was the subject of a front-page article in the New York Times.

Recently, the Committee, now chaired by Lenni Benson, has been extremely active in issuing reports and writing to government leaders on the issue of legal representation in immigration proceedings. On a national level, the Committee has worked with members of both Houses of Congress to include a right to counsel in any immigration law reform efforts.  On the local level, earlier this year, the Committee testified before the New York City Council in support of the City’s allocation of $4.9 million to fund the nation’s first public defender system for detained immigrants.

The Committee’s arguments are bolstered by research it requested last spring, through WilmerHale, from NERA Economic Consulting, an independent consulting firm. The NERA report found that a national immigration federal public defender system would essentially pay for itself through cost savings in detention, foster care, and transportation. In a June 16th editorial headlined “Innocents at the Border: Immigrant Children Need Safety, Shelter and Lawyers,” the New York Times wrote, “The Dickensian absurdity often seen in immigration courts — little children propped up before judges and government lawyers with no idea of what is going on — must not be tolerated. Concerns about the cost of providing lawyers should by eased by a recent study from the New York City Bar Association showing that free legal representation for indigent migrants pays for itself, mainly by reducing the costs of unnecessary detention.”

Today the urgent immigration topic before the nation is what to do about the “Border Kids,” many of them fleeing the epidemic of crime and gang violence sweeping Guatemala, El Salvador, and Honduras. Fortunately, our Immigration and Nationality Law Committee has had an active subcommittee working on immigrant youth issues with the Family Law and Family Courts Committee and the Children and the Law Committee. In fact, ten members of the immigration committee work in the area of immigrant child protection. The subcommittee has participated in research on family court practices and conducted several citywide trainings to build skills and resources in the immigration and family law bars. Last year, the committee held five trainings inside the family courts, offering free CLE credits to attorneys interested in learning about Special Immigrant Juvenile Status, which affords legal status to children who have been abused, abandoned, or neglected by a parent.

In late July, urgent concerns arose with respect to the fast-track “surge docket” strategy the federal government is implementing that provides only perfunctory hearings into detainee’s claims that returning home means a return to the grave danger they just fled. The Committee wrote to Congress to support, among other things, appropriations for appointing counsel for children in removal proceedings, and to urge access to full hearings for these children as provided by the Trafficking Victims Protection Reauthorization Act. The Committee cited a recent study showing that nearly half of the children in removal proceedings are unrepresented, and that only one in ten unrepresented kids won relief from removal compared to 47 percent who had counsel. In a Huffington Post op-ed on July 31st, the Committee also took its message to the public, a significant majority of which, a recent poll shows, supports legal representation for immigrants facing deportation.

Last month, Lenni Benson and I wrote to President Obama about reported denials of due process and access to counsel in the detention facility in Artesia, New Mexico, urging the Administration “to take immediate action to ensure that these families, many of whom have fled persecution and extreme violence in their home countries, are afforded fundamentally fair hearings that comply with U.S. and international law, rather than being detained and processed rapidly for deportation without the fair procedures necessary to determine whether they are entitled to protection in the United States.”

With thousands of border kids being transferred to New York, our Immigration Committee will continue to provide trainings and in October, Lenni Benson will speak to the Office of Court Administration about systemic issues and possible reforms in the family courts.  Further, the Justice Center will train pro bono attorneys to handle cases, will take on 10 cases in-house, and will provide technical assistance to pro bono attorneys who email questions to cbjcchildrendocket@nycbar.org. And the Justice Center will work with the Immigration Committee on a report on the constitutional right to counsel for unaccompanied, indigent, immigrant children facing removal.

As the border kids issue plays out, and as the next immigration issue inevitably presents itself next month, next year, or next decade, I know that our Immigration and Nationality Law Committee and City Bar Justice Center, their ideas informed and their credibility strengthened by their work on the ground, will continue their extraordinary work as both thought leaders and action leaders for increasing access to immigration justice.

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

 

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In a letter to the director of the SEC’s Division of Corporation Finance,  the New York City Bar Association applauds the Commission’s initiative to improve the quality and usefulness of public company disclosure, and proposes, separate and apart from existing disclosure requirements, “a rule to cut through the rules.”

Prepared by the City Bar’s Committee on Financial Reporting, the letter was prompted by an initiative announced by the SEC to address the quality of business disclosure and the related problem of “disclosure overload.”  Following speeches by SEC Chair Mary Jo White and SEC Corporation Finance Director Keith Higgins, the Committee’s letter states, “We believe both were excellent contributions to the objective of disclosure enhancement, and we write in response to help with the effort to make public company disclosure more effective.”  The letter also states, “We share in particular the concern expressed by Commission Chair White regarding ‘ever-increasing amounts of disclosure’ that can ‘make it difficult for an investor to wade through the volume of information she receives to ferret out the information that is most relevant.’”

The core problem, explains the letter, is that, while prescriptive rules certainly play an important role in disclosure, it can be difficult to mandate effective communication through rulemaking. “The natural managerial reaction to rulemaking, rather, is an effort to comply, which can result in an understandable but potentially counterproductive ‘compliance mindset’ that places technical conformity to the rules over effectiveness in communication.”

Financial Reporting Committee Chair Michael Young, who signed the letter, said the Committee’s objective is to encourage companies to write with the plain English understandability of Warren Buffett.  “The challenge is how to accomplish that through a rule,” he said.

The Committee’s letter proposes “a rule, separate and apart from existing disclosure requirements such as Item 303 (Management’s Discussion and Analysis), that encourages companies at the outset of their annual reports on Form 10-K or 20-F to effectively communicate their own plain English overview of what’s going on – much as a CEO might report to his or her board of directors.”

The proposed rule would state, in its entirety:

Provide an overview describing what happened at the company over the past year and your expectations and concerns about the year to come.

As the letter notes, such an approach would leave to the judgment of management those aspects of business activity worth reporting. However, states the Committee, “our experience suggests that some of the most effective communication of business information has been achieved where management judgment has been permitted to play a significant role.”

The Committee ultimately concludes that, in regard to business disclosure, “the most important information is best volunteered, up front, by management in a way that is both understandable and provides context. The challenge is to formulate a rule that seeks to accomplish that without inadvertently sending disclosure in the opposite direction.”

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

 

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The New York City Bar Association has evaluated the candidates running in the September 9th Democratic Party primary elections for Civil Court in Kings County. The review was conducted by the Association’s Committee on the Judiciary.

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

Kings County

Civil Court, 2nd District

Rupert V. Barry Approved
Cenceria P. Edwards Approved

Civil Court, 6th District

Sharon Clarke Not approved by reason of the candidate’s failure to affirmatively demonstrate that she possesses the requisite qualifications for the court for which she is a candidate
Isiris Isela Isaac Approved
Diana J. Szochet Approved

 

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

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The New York City Bar Association’s Committee on Professional Ethics has issued an opinion (2014-03) stating that when a client has granted an attorney advance authorization to charge the client’s credit card for legal fees, but the client later disputes all or part of a particular bill, the attorney may not then charge the client’s credit card for the disputed portion of the bill.

It is now well established, notes the opinion, that attorneys are permitted under the New York Rules of Professional Conduct to accept payment by credit card, as long as they comply with various ethical requirements, including protecting confidential information, as required by Rule 1.6, and avoiding excessive legal fees and expenses, as required by Rule 1.5.

As the committee explains, Rule 1.15 contains various provisions designed to protect “client funds” and other “property,” making it clear that these protections arise from the lawyer’s role as the client’s “fiduciary.” Therefore, “a lawyer who has been entrusted with a client’s credit card information, along with authority to make charges against the credit card account, holds that information as the client’s fiduciary. As a general matter, charging the client’s credit card account after the client has disputed the fees violates this trust.”

Such a practice, states the opinion, is analogous to a lawyer taking possession of disputed funds being held in escrow for the client’s benefit, which is explicitly prohibited under Rule 1.15(b)(4). “If the lawyer is not permitted to withdraw disputed funds from escrow, it follows that the lawyer may not charge disputed amounts against a client’s credit card account, which is sensitive information belonging to the client that the lawyer holds in trust and which provides the lawyer with access to a client’s personal funds.”

Therefore, under the New York Rules of Professional Conduct, an attorney may not charge a client’s credit card account for any disputed portion of a bill, even if the client has previously given advance authorization.

The opinion can be read here: http://bit.ly/1s5BGN1

 

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A post published today on the Huffington Post, by the chair of the City Bar’s Immigration & Nationality Law Committee, Lenni Benson, along with the two co-chairs of the Subcommittee on the Right to Counsel and Due Process for Migrants, Farrin R. Anello and Michael D. Cooper, addresses “the refugee crisis unfolding on our southern border.”

The piece argues that the crisis is not about disrespect for the law, or lack of enforcement, as some have suggested. “These children are not eluding authorities; they are seeking out authorities. They have come here not to evade U.S. law, but rather to embrace U.S. law and the protection it offers to victims of persecution, human trafficking and torture,” the post states.

The authors push back against what they see as an emerging consensus “between the White House and Congress to diminish the protection and due process rights of children.” Rather, under the Trafficking Victims Protection Reauthorization Act, and with evidence that nearly 60 percent of children entering the U.S. may have a valid claim to international protection, due process requires that we determine who among these kids has a valid right to stay here, they write.

That task is easier said than done: “[P]arsing through a child’s case is no easy task, especially when the child is a victim of serious crime, or sexual or domestic abuse, or has grown up surrounded by extreme violence, or suffers from shock or trauma.”

The authors propose that the best way to get to the bottom of each child’s case, and to resolve the overall crisis, would be to provide government-appointed counsel to these children. And the authors cite recent research from the economic consulting firm NERA that shows that “the savings to the Federal government from detention, foster-care and transportation outlays alone would pay for most if not all of the cost of providing lawyers.”

Read the full piece on the Huffington Post here.

 

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The New York City Bar Association presented its Norman Redlich Capital Defense Distinguished Service and Pro Bono Awards on July 14th. James S. Liebman, a litigator and scholar who has worked to abolish the death penalty and to prevent the execution of numerous prisoners sentenced to death, received the Distinguished Service Award, and Kaye Scholer LLP, which has advocated for death-row inmates since the early 1990s, received the Pro Bono Award. Representing Kaye Scholer was Lori B. Leskin.

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International Justice Day is a particularly appropriate time to acknowledge the importance of having international and hybrid courts, as well as domestic courts, available to prosecute genocide, war crimes and crimes against humanity.

Tribunals such as the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon have been important tools in the fight against impunity.

A significantly more important component of the system of International Justice is the International Criminal Court (ICC), a tribunal currently prosecuting genocide, war crimes and crimes against humanity in The Hague, Netherlands.

The New York City Bar Association was one of the earliest leaders in endorsing the ICC, with a statement in 1997 towards the end of the negotiations to create the Rome Statute that established the court.  The City Bar also went on record as supporting accession by the United States to the Rome Statute in 2002.

The ICC is now a fully established and permanent institution.  In its 21 cases, of which two have now resulted in convictions, the Court has already made important progress in clarifying and implementing international law as to the core crimes in its jurisdiction.

The Court is especially important for lawyers to advance the rule of law internationally, for setting and applying high standards of due process, and for developing ways for victims to participate and have a voice in trials.

One hundred and twenty-two countries are parties to the ICC’s Rome Statute.  While the U.S. is not yet a party, the City Bar is pleased by the effective and increasingly close relationship between the U.S. and the Court and calls for the progressive removal of legislative obstacles to full U.S. engagement.

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