The City Bar Justice Center applauds the New York City Council’s allocation of $4.9 million in new funding for the New York Immigrant Family Unity Project (NYIFUP) in this year’s city budget. The funding will establish the nation’s first public defender system for detained immigrants. By 2015, NYIFUP should be able to provide deportation defense to over 1,300 immigrants. The funding will go to three public defender organizations with experience in the overlap between criminal and immigration law and to Vera Institute for Justice, which coordinates the project.

The creation of the NYIFUP is the result of dozens of groups—and much of the legal community, including law schools, bar associations like the New York City Bar Association and pro bono groups like the Justice Center, along with private attorneys—working together with the Katzmann Study Group to find a solution to the growing number of immigrant New Yorkers deported without access to counsel. This problem had existed for a long time, but under the Obama Administration the number of immigrants detained and deported, including in New York, has soared. As of January 2014, there were 49,539 pending cases in New York City immigration courts—nearly double the amount at the end of fiscal year 2008.

The Justice Center responded to the lack of counsel for detainees by starting a pilot pro bono project in 2009, which included a weekly clinic in the Varick Street detention facility. We issued a report on the cases reviewed, finding that 39% of detained immigrants had a possible legal claim but no attorney to represent them. Thanks to the global immigration law firm Fragomen, a series of Fragomen Fellows at the Justice Center have managed collaborations with AILA NYC Chapter, The Legal Aid Society, NYU School of Law’s Immigration Clinic and others to train dozens of volunteer attorneys from leading New York City law firms to staff the clinic and handle cases on pro bono assignment from the City Bar Justice Center.

The Justice Center and our pro bono volunteers have together won release of 21 immigrants from detention and won cancellation of removal claims for 18 of them, reuniting loved ones with their families. This showed us what a difference trained counsel could make, a conclusion arrived at by many other recent studies of the unfairness in the immigration removal system, where many poor clients lose their cases because they cannot afford counsel.

Just a few weeks ago, the New York City Bar Association welcomed the issuance of NERA Economic  Consulting’s report “Cost of Counsel in Immigration: Economic Analysis of Proposal Providing Public Counsel to Indigent Persons Subject to Immigration Removal Proceedings.” NERA’s report, by Dr. John Montgomery, affirms the City Bar’s longstanding support for appointed counsel in immigration removal proceedings. The report finds that a national immigration federal public defender system’s benefits could offset the federal government’s costs, through detention, foster care and transportation savings, even without quantifying other likely fiscal, social and administrative benefits. As Dr. Montgomery said, “When we conducted our analysis, we found that under plausible assumptions, providing counsel to indigent respondents could pay for itself.”  We congratulate the City Bar Immigration and Nationality Law Committee, chaired by Lenni Benson, for requesting this report, and WilmerHale LLP for retaining NERA and providing extensive pro bono assistance to the City Bar in its immigration reform advocacy.

Building a local immigrant defender system will prove to be a wise move for New York City. The cost savings that will accrue may be enough to convince Washington and the rest of the country not to continue denying due process rights to family members that become ensnared in the tangle of our complex immigration laws. Sometimes doing the right thing is also the cost effective course of action, and that is all the more reason to provide representation to detained immigrants.

Lynn M. Kelly is Executive Director of the City Bar Justice Center.

 

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The New York City Bar Association’s Committee on Legal Services for Persons of Moderate Means, in conjunction with the City Bar Justice Center, seeks volunteer attorneys to staff the Monday Night Law (MNL) clinic, which begins its 24th year in September. MNL is designed to address the public’s need for affordable, accessible legal assistance by holding clinics every Monday evening at the City Bar. At the clinics, volunteers meet with clients who have been screened by the Association’s Legal Referral Service, which coordinates MNL’s scheduling. Volunteers must attend two training sessions in September and commit to attend a clinic one Monday evening per month from October 2014 through August 2015.

During 30-minute appointments, clients and attorneys discuss issues in the areas of housing, employment, family law, consumer law, small business and personal bankruptcy. The volunteers do not take any cases, but will distribute materials and provide explanations and suggestions to help clients understand and find solutions to their legal problems on their own, or, where appropriate, make referrals for representation back to the Legal Referral Service or other legal services providers.

Volunteer attorneys must commit to attending two training sessions at the City Bar, on Monday, Sept. 8, 2014, and Monday, Sept. 22, 2014, from 5:45 p.m. to 9:00 p.m. in the Meeting Hall on the second floor of the Association. Continuing legal education credit is available upon completing the requirements for the trainings and attendance at the MNL clinics; pro bono CLE credit is also available for the MNL clinic work.

No prior experience in the topics covered is necessary. To participate in the program, volunteer attorneys must (1) be admitted to practice in New York, and (2) have been practicing law for at least two years in the public sector, private practice, as in-house counsel, or in some other capacity, or have had some significant related experience. There are limited roles for non-admitted attorneys. For a copy of the full clinic description and an application to participate, please email here by Friday, Aug. 15, 2014.

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The City Bar strongly supports the Vulnerable Immigrant Voice Act, which would provide counsel to unaccompanied children and the mentally disabled in deportation proceedings. This is a crucial first step toward ensuring fairness and justice for those incapable of representing themselves. Moreover, as the report we requested from NERA Economic Consulting demonstrates, a national public defender system for immigrants facing deportation would pay for itself through savings in the cost of detention, foster care and transportation. We support Representative Hakeem Jeffries’ leadership in working to provide much needed counsel to these vulnerable groups.

Debra L. Raskin, President

 

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The New York City Bar Association applauds the Legislature for passing a bill that, with the Governor’s signature, will increase the number of Family Court judges throughout New York State. This greatly needed legislation will immediately benefit children and families, helping to ease the strain on an overburdened Family Court. We commend the legislative leaders and members of the Senate and Assembly, the Office of Court Administration and the coalition of advocates who have worked tirelessly to achieve this victory for New York’s justice system.

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Anticipating that targeted killings by drones may increase in the future, both by the United States and by other countries, the New York City Bar Association today released a report analyzing the legality of targeted killings by drones launched by the United States in the context of international law.

While noting that there are serious constitutional, moral and policy issues associated with targeted killings using drones, some of which the City Bar has addressed elsewhere, today’s report—titled “The Legality Under International Law of Targeted Killings by Drones Launched by the United States”—deals strictly with the legality of drone strikes under current international law. The 181-page report characterizes the international legal issues as “complex,” and the analysis “complicated” because, among other reasons, “although the analysis of the legality of a drone strike is highly fact-specific, the facts surrounding the strikes are unclear.”

Based on the facts in the public record, the report concludes that while the U.S.  invasion of Afghanistan was a legitimate act of self-defense in response to the 9/11 attacks by al-Qaeda, those attacks no longer supply a legal basis for additional measures, such as drone strikes, against al-Qaeda or its alleged affiliates. Rather, under international law, “If the continued use of force is to be justified on the basis of self-defense, it must be justified by current armed attacks,” the report states.

Under international law, the Report concludes, “the inherent right to self-defense is available against non-State actors, such as terrorist groups…if there is an actual or threatened ‘armed attack’ by the non-State actor.”  In exercising the right of self-defense, the State may use force against a non-State actor, constrained by the principles of necessity and proportionality, within the territory of another State so long as force is directed against that actor and not another State, even in certain circumstances before an armed attack has occurred if the State has “no choice of means” to protect itself short of the use of force.  The report observes, based on publicly-available information, that many States appear to have consented to U.S. drone strikes, making unnecessary any self-defense analysis.

The use of force in another State’s territory without its consent, based on a claim of “self-defense,” triggers a duty to make disclosures to the United Nations Security Council under Article 51 of the UN Charter, the report explains.  “[I]f Pakistan currently denies consent to U.S. drone strikes, as it has stated publicly, the U.S. has a duty to report to the Security Council on its invocation of Article 51 with respect to those strikes,” the report states. “Consistent with its prior practice, the U.S. should disclose the armed attack(s) giving rise to the right to act in self-defense and the measures that the U.S. is taking in the exercise of that right. It does not appear that the U.S. has met its disclosure obligations under Article 51 with respect to Pakistan.”

Even if the use of force on another State’s territory is lawful, the report explains, the legality of killing a particular individual depends upon the existence of an armed conflict.  According to the Report, “Except in extreme circumstances, a targeted killing outside of an armed conflict is almost certain to be contrary to [International Human Rights Law], which guarantees to each individual the right to life.”  Whether an “armed conflict” exists is a determination that must be made on a State-by-State basis by considering the “intensity of the conflict” and “whether the individual non-State organizations in those countries have the structure required to qualify as ‘parties’ to an armed conflict.”  The report explains that the issue of an alleged “global war” is irrelevant under international law if the United States is involved in domestic armed conflicts within individual States, even against different parties.

The Report states that where it is determined that the United States is involved in an armed conflict with a non-State actor, “we follow the [International Committee of the Red Cross] Guidance that the principle of distinction permits the United States to target and kill a member of the non-State actor’s ‘armed forces,’ i.e., a member of the armed group who performs a ‘continuous combat function,’” the report states.

Beyond the Article 51 requirements concerning the use of force on another State’s territory, the report concludes that “the United States is not required to make further disclosures on targeted killings under international law, no matter how desirable such disclosures might be as a matter of policy or ethics.”

The Report makes clear that it “does not address the legality of the targeted killings under domestic U.S. law. Nor does it discuss the appropriate policy that should be followed even if that policy is not prohibited by law. However, we recognize that decisions regarding the U.S. targeted killings policy must be considered in the context of this nation’s democratic process. There are serious constitutional and other implications of conducting a largely secret war, and policy issues on its wisdom and morality. Thus, this Bar Association has urged that the U.S. Government make public the legal justification of its targeted killings policy. In a 2012 letter to President Obama, Association President Carey R. Dunne said, ‘Given the importance and relative novelty of the drone strategy, we believe this program should be the subject of informed public discussion and that, so long as the program is in use, decisions to use drone strikes should be made with the strictest of scrutiny and in a manner best calculated to avoid collateral damage.’”

For the full report, click here: http://bit.ly/1lKPEuV

For the introduction and executive summary only, click here: http://bit.ly/1oLzERD

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After a decade of collecting data on law firm diversity, the New York City Bar Association has found that an expanding business case and increased emphasis by clients is establishing diversity as essential to the ‘new normal’ for law firms. At the same time, unconscious bias and the need for more white men to play a role in diversity efforts are challenges that law firms must overcome in order to diversify fully.

In its 2013 Diversity Benchmarking Report released today, the City Bar found signs of progress in the diversification of law firms, especially at the junior associate level. For example, while attorneys of color made up about a fourth of second-year associates in 2004, by 2013 they made up nearly a third. And the number of openly LGBT attorneys more than doubled during that time, as a result of both better reporting and increased acceptance in the workplace.

At the most senior levels of law firm leadership, however, minority and women attorneys are still not adequately represented, and there is higher turnover among these groups than among white men. In addition, minority and women who become partners are more likely to be non-equity partners than white males.

The City Bar’s Benchmarking Reports compile data from signatories to the Association’s Statement of Diversity Principles. On the tenth anniversary of producing the reports, the City Bar saw an opportunity to move ‘beyond the numbers’ and gather qualitative information as well through in-depth, hour-long interviews with law firm managing partners, diverse law firm partners, diversity directors and senior in-house leaders at major corporations.

A key issue that arose in the interviews, described by one interviewee as the “elephant in the room” interfering with continued diversity progress, was “unconscious bias.” Interviewees described manifestations of unconscious bias against minority and women attorneys, explaining how it influenced firm advancement, and noted the importance of individuals being aware of their own inherent biases. For example, said one interviewee, “There is an anti-commitment bias against women. It exists whether or not you have children. The bias is that women are not as committed as men, not as likely to stay around….There’s a sense of, should I invest in that person?”

Another key theme that emerged was the importance of proactively engaging white men and helping them understand the economic importance of diversity, as well as the vital role they must play in promoting diversity. The concern was that many white men fail to see how diversity is relevant to them. “If you were trying to foster change and lead an initiative and 60% of people feel like it has nothing to do with them, it’s not going to be successful,” noted one participant.

“While we’re pleased that more and more firms appear to understand that diversity benefits them as well as their employees, we still have miles to go,” said City Bar President Debra L. Raskin. “Increasing awareness of unconscious bias and firm-wide accountability for improving diversity are positive trends we should all support.”

While looking back over the past ten years, the report also lays out some recommendations for “the road ahead.” In addition to increasing understanding of unconscious bias and engaging more white men in diversity efforts, they include actively tracking and supporting women and minorities through transitions, evaluating unintended consequences of multi-tier partnership models, and increasing accountability of partners for improving diversity.

In 2003, more than 100 New York City law firms signed the City Bar’s Statement of Diversity Principles. Signatory firms articulated key goals and agendas for diversifying the talent pool of attorneys, from the junior level to the most senior law firm leaders. Crucial to that effort was providing the City Bar with detailed data on a comprehensive set of workforce metrics over time. The first survey was distributed in 2004 and collected data on the diversity representation and demographics at key levels, hiring and promotions, availability and usage of flexibility, as well as an in-depth look at the associate pipeline. Today, the Statement has over 130 signatories.

The 2013 Diversity Benchmarking Report is available at: http://bit.ly/1lw6yDy

 

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This month, the New York City Bar Association is celebrating thirty years of efforts to increase diversity in the legal profession. A series of forums assessing the state of diversity in the profession culminates on June 18th with a gala fundraiser honoring the 2014 Diversity and Inclusion Champion Award Winners: Michelle J. Anderson, Joseph M. Drayton, Natalia Martín, Karla G. Sanchez, and, posthumously, Thomas E. Heftler and Michael W. Oshima. The City Bar will also present its first Diversity Pipeline Champion Award to the Morgan Stanley Legal and Compliance Division.

It has been ten years since the City Bar began producing Diversity Benchmarking Reportsbased on data from many of the more than 130 law firms and corporations that have signed on to our Statement of Diversity Principles. This year’s benchmarking report, to be released on June 18th, takes a big-picture look at data gathered over the last decade.

Not surprisingly, given the historically homogenous makeup of the legal profession, the numbers show mixed results, with signs of progress alongside challenges that remain. Among the gains is the progress at the junior associate level; while attorneys of color made up about a fourth of junior associates in their second year in 2004, they were nearly a third of the group by 2013. And representation of openly LGBT attorneys has more than doubled, due to both better reporting and increased workplace acceptance.

On the other hand, minority and women attorneys are still not adequately represented at the most senior levels of law firm leadership. New, multi-tier partnership structures appear to have unintended negative consequences for minority and women attorneys. And there is higher turnover among attorneys of color and women attorneys than among white men.

That said, what the numbers don’t reflect is a shift in culture, a “new normal” where there is significant acceptance of the “business case” for diversity. This change in culture is noted by many of the leaders of the legal profession who were interviewed for the report:

“There is a much greater recognition that diversity is a given. Firms are moving forward and trying to redesign and adjust themselves to the ‘new normal’ and diversity is part of that conversation, even given various market realities. When firms are pulling back in a lot of ways, they are not pulling back on diversity.”

“Law firms are following their clients. There is a huge lag but multinational firms are increasingly reflecting diversity and I mean diversity on a global basis. If you still think we live in a 1950s America, we don’t believe you are going to be as successful going forward. That world is getting successively smaller all the time.”

The most interesting part of the report for me was the section on “unconscious bias,” a subtle and sensitive topic not explicitly raised by the interviewer but that was brought up by law firm and in-house leaders:

“People wonder why diversity is not working better and the answer is bias. It’s not about people being bigoted. It’s about not having the competency and awareness about their own biases. That’s really hard for smart people.”

“There is a narrow definition of merit and who is qualified. The problem is my definition of what constitutes a good lawyer is someone who mirrors my path . . . . You end up with a pool that looks like you. You have to work at being aware of unconscious bias.”

“This is not a mal-intentioned environment but we all come in with natural biases.”

That last point bears repeating and reflecting upon. To be human is to have unconscious biases and to have to work consistently at being aware of them and not letting them dictate conduct. As stated in the report, “Given its deep roots, tackling unconscious bias requires leadership and persistence. It is among the greatest challenges that diverse attorneys face.”

So how do we increase diversity in the profession over the next ten years? One key, according to the interviewees in the report, is enlisting more white men in the effort:

“If you were trying to foster change and lead an initiative and 60% of people feel like it has nothing to do with them, it’s not going to be successful.”

“If straight white men feel excluded, then we are failing. We need to create a culture, not a cult.”

Indeed, according to the report, “the biggest concern expressed was that the majority of white men fail to see the relevance of diversity to them.” What’s needed, the report suggests, is an environment where white men can comfortably discuss diversity, voicing their questions and deepening their understanding of the issues and their own mindsets. “Given the opportunity to become more involved in the dialogue, white males were described as becoming some of the biggest supporters of diversity,” the report states. These issues of unconscious bias and the need for more white men to engage in diversity efforts were addressed at recent City Bar-sponsored forums for managing partners, diversity directors and general counsel.

The report contains no “silver bullet” for achieving a diverse workforce from top to bottom. Rather, success depends on “multiple angles and layers of intervention” across the range of critical functions: recruitment, development, evaluation and compensation, assignments, and so on. “The most effective approach to diversity was described not as a cottage industry but as a lens to view the myriad systems and practices that define firm life.”

Despite the mere incremental gains in diversity seen from year to year, I think there is cause for optimism. With the change in culture and the “new normal” that is emerging, diversity is no longer relegated to a subcommittee but is increasingly everyone’s concern.

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 an opinion (2014-02) stating that a New York lawyer may use the street address of a virtual law office (VLO) as the “principal law office address” for the purposes of Rule 7.1(h) of the New York Rules of Professional Conduct, even if most of the lawyer’s work is done at another location. The lawyer also may use the VLO address on business cards, letterhead and law firm website. New York lawyers who use a VLO also must comply with other New York Rules, including 1.4, 1.6, 5.1, 5.3, and 8.4.

A virtual law office, as it is used in this Opinion, refers to a physical location that offers business services and facilities, such as private or semi-private work spaces, conference rooms, telephones, copy machines, and mail drop services to lawyers. As the Committee notes, “given the lower overhead, improved encryption systems, expansion of mobile communication options, availability of electronic research, and the ease of storing and transmitting digital documents and information, VLOs are becoming an increasingly attractive option for attorneys throughout the country.”

New York Rule 7.1 sets restrictions on advertisements disseminated by lawyers or law firms. One of those restrictions is stated in Rule 7.1(h): “All advertisements shall include the…principal law office address…of the lawyer or law firm whose services are being offered.” Although the phrase “principal law office address” is not defined anywhere in the New York Rules, New York State Bar Association Ethics Opinions 756 and 964 have concluded that Rule 7.1(h) requires a physical street address.

NYSBA Ethics Op. 756 identifies several reasons for the office address requirement. First, disclosure of a physical address “should facilitate a prospective client’s ability to make an intelligent selection of lawyer.” Second, a physical location enables members of the public or clients to meet with the lawyer, contact them by mail, and serve legal papers. Third, the absence of an address “could be misleading,” for example, “by suggesting a physical proximity to the recipient that does not in fact exist” or “the ability to serve in jurisdictions in which the advertising firm or lawyer is not qualified to practice.”

According to Opinion 2014-02, each of these policy interests can be advanced by the use of a VLO. First, the fact that a lawyer uses a VLO “may itself be a relevant factor in selecting or rejecting a particular lawyer.” Second, the VLO provides a physical location for clients or members of the public to contact, meet with or serve legal papers on the lawyer. And lastly, states the Committee, “we do not believe use of a VLO address in advertising is inherently misleading. Given the prevalence of alternative work arrangements (telecommuting, work-sharing, office-sharing, etc.), members of the public no longer assume that a physical street address is equivalent to a traditional, single-purpose, brick-and-mortar office.”

The Committee also notes, “economic conditions in the legal world and technological developments persuade us that we should not create obstacles to the use of VLOs as long as the interests of clients, the courts, and the legal system are protected.” Still, the Opinion states that attorneys should be aware of to the following ethical concerns when using a VLO:

  • Under Rules 5.1 and 5.3, law firms and lawyers are responsible for supervising the conduct of subordinate lawyers and nonlawyers and ensuring they comply with the Rules. Given the differences between a VLO and a traditional law office, lawyers who use VLOs may need to take additional precautions to ensure that they are fulfilling their supervisory obligations.
  • Rule 1.6(a) prohibits a lawyer from “knowingly revealing confidential information,” absent informed consent or other exception. In addition, Rule 1.6(c) provides that “a lawyer shall exercise reasonable care to prevent the lawyer’s employees, associates and others whose services are utilized by the lawyer from disclosing or using confidential information of a client.” A lawyer who uses the shared services and office space of a VLO must take reasonable steps to ensure that he or she does not expose or put the client’s confidential information at risk.
  • Rule 1.4 requires lawyers to communicate with clients and keep them apprised of the status of their legal matters. Lawyers who use VLOs must be particularly mindful of these ethical obligations, given that the lawyers may frequently be away from the physical location that serves as their business address.
  • A significant concern underlying Rule 7.1(h) is the availability of an address for purposes of personal delivery and acceptance of service of process. Where a VLO is authorized to accept service of process, the attorney must ensure that the VLO communicates with them concerning the receipt of any materials with sufficient promptness.

New York lawyers may need to consider additional issues, such as whether the contemplated arrangement complies with relevant substantive laws and court rules, and the professional conduct rules of other jurisdictions.

The Opinion can be read here: bit.ly/1p78jWF

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