The New York City Bar Association is now accepting nominations for the Twenty-Seventh Annual Legal Services Awards. The award recognizes the efforts of lawyers and non-lawyers who have directly provided free legal services to indigent clients on a full-time basis for an extended period of time. Nominees should have provided these legal services for at least five years.

Downloadable and printable nomination forms are available on the City Bar website at bit.ly/21ou6vJ. Please address nominations to the Legal Services Awards Committee, Executive Director’s Office, New York City Bar Association, 42 West 44th Street, New York, NY 10036; fax (212) 398-6634; or email misaacs@nycbar.org.

For more information, contact Margot Isaacs at (212) 382-6624 or misaacs@nycbar.org.

The deadline for nominations is Friday, April 29, 2016. The Association will honor the winners at a reception June 1st at the City Bar.

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In a letter to Senator Chuck Grassley, Chair of the U.S. Senate’s Judiciary Committee, and Senator Mitch McConnell, Majority Leader of the U.S. Senate, the New York City Bar Association respectfully urges reconsideration of their recently stated refusal to consider any nomination to the United States Supreme Court made by President Obama.

Citing the Appointments Clause of the U.S. Constitution, the Federalist Papers, constitutional law professor John O. McGinnis, a 1992 City Bar report on the Senate confirmation process, and Senate practice dating back to the John Adams presidency, the letter states that the President “has the duty to nominate an individual to serve on the Supreme Court when a vacancy arises, and the Senate has the duty to evaluate that nominee and provide its advice and consent to the President so as to facilitate the President’s further duty to appoint. This back-and-forth process was meant to create accountability and a check against abuse of power.”

Further, by effectively rejecting the President’s nominee before the President acts to nominate, “the Senate is breaking with longstanding historical practice,” according to the letter. “Throughout our country’s history, Supreme Court vacancies have needed to be filled in the final year of a president’s term and the Senate has never issued a blanket refusal to consider a nominee before he or she was named by the President.”

The letter argues that the Framers anticipated that the nomination and confirmation process would sometimes occur during times of conflict between the Senate and the President, as we witness today, “and decided that, under these circumstances, a public confirmation battle would be a good thing. The public has its say, by and through their elected representatives, and the Senate is free to approve or reject the President’s choice. If, after a review and confirmation process, the Senate rejects the President’s choice, the ball moves back to the President’s court to nominate someone else, which is exactly how the Framers wanted the process to work. The Appointments Clause was put in place so that offices could be filled, not remain vacant,” the letter states.

“Based on the above,” the letter concludes, “we urge that you reconsider your position and make public the Senate’s willingness to provide advice and consent to the President once he names a nominee. No one wants or expects the Senate to rubber-stamp the President’s nominee—and, in fact, the rigorous and public vetting and debate engendered by the Senate confirmation process and, indeed, the entire system of checks and balances built into our Constitution, is a hallmark of American democracy. What is unique and unprecedented in this instance is the Senate Majority’s preemptive act of rejecting, out of hand, any nominee the President may name, before the President has acted to fulfill his duty to nominate. The Senate’s flouting of a sequential process that was painstakingly formulated in the Appointments Clause should not be countenanced.”

The Appointments Clause of the U.S. Constitution, Article II, Section 2, Clause 2 reads:

[The President] shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Councils, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Read the City Bar’s letter here: http://bit.ly/1VQDogK

 

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The New York City Bar Association is now soliciting nominations for the Kathryn A. McDonald Award for Excellence in Service to Family Court. This award recognizes the vital services of lawyers and non-lawyers who work in the Family Court in New York City.  The winners will be honored by the Association at a reception at the City Bar on Monday, May 16, 2016.

Details on the nominating process and a copy of the nomination form can be found on the Association’s website at http://bit.ly/Ar2POK or by contacting Margot Isaacs at 212-382-6624 or misaacs@nycbar.org.

A list of past McDonald Award winners can be found here: http://bit.ly/1RGCfXS

Nominations are due by April 15, 2016.

 

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If the headline above looks familiar, that’s because it’s almost exactly the same as the headline of my column in this newsletter one year ago. A familiar refrain, “Reform Albany” is starting to take on the quality of an annual New Year’s resolution, except our personal resolutions typically involve changing ourselves, not reforming others. Government reform, on the other hand, requires a concerted and persistent effort by the public, reform-minded legislators, good government groups, the Governor and, sometimes indirectly, the judiciary, to persuade those in power to change the rules in a way that benefits the public, and not necessarily those in power. A tall order, indeed.

Fortunately,  rather than losing interest, giving up, or succumbing to fatigue on the issue, voters are once again demanding reform, perhaps emboldened by the recent felony convictions of former Assembly Speaker Sheldon Silver and former Senate Majority Leader Dean Skelos, two of the “three men in a room.” And, the Governor appears to be listening. In his combined State of the State address and budget presentation on January 13th, Mr. Cuomo laid out an ambitious ethics reform package to be adopted with the Budget: restricting the outside income earned by legislators to 15% of a legislator’s statutory salary (currently $79,500); closing the “LLC loophole” so that limited liability companies are subject to the same campaign contribution limitations as corporations; implementing campaign finance reform measures to increase transparency, lower contribution limits, and create a statewide system of public campaign finance; subjecting the legislature to the Freedom of Information Law (with certain exceptions); and enhancing certain enforcement powers of the state’s ethics body, the Joint Commission on Public Ethics (JCOPE). This sounds like good news to those of us who want a state government that is transparent, effective, non-corrupt, and democratic. The question now is whether the Legislature will go along with what the Governor has proposed.

As our committees continue to analyze the language of the current proposals, I’d like to highlight two positive developments since I wrote my column one year ago. First, JCOPE is showing signs of embracing its authority to issue advisory opinions on significant issues, such as the relationship between large campaign contributions and access to government, and whether consultants should be registering as lobbyists under certain circumstances.  Second, the Public Officers Law has been amended to require legislators who earn fees from a legal practice (or affiliation with a legal practice) to disclose more information about the amount and source of those fees.  Neither is a perfect or complete solution, but they are two of the more noteworthy developments.

However, a few crucial reform items remain in political limbo, appearing nowhere in the Governor’s proposal and showing no signs of attention or movement during the past few legislative sessions. The first issue pertains to the structure of JCOPE. As it currently stands, a partisan minority holds veto power over the committee’s investigatory decisions. The law should be changed so that JCOPE can act by majority vote.  In addition, the law should be changed to provide one commissioner appointment each to the Comptroller, the Attorney General, and the Chief Judge. By enacting these changes, the Governor and the Legislature can assure JCOPE’s true nonpartisan independence.

Second, we eagerly await proposed rules changes, promised by Assembly Speaker Carl Heastie, which are meant to increase legislative transparency. In the past, the City Bar has called for the adoption of new rules in both houses that would, among other things, institutionalize conference committees, require more reporting on legislative websites regarding a bill’s progress, empower individual legislators to bring bills to a vote if there is sufficient support, limit a legislator’s term as a committee chair, and mandate a “mark-up” process for all bills before they are voted out of committee. Some of these rules already have been enacted by the Senate. If such rules changes are enacted by the Assembly, the public will be better for it.

With the 2016 legislative session underway, please know that the City Bar, led by the work of our Government Ethics and Election Law Committees, will hold true to that part of our mission that requires us to seek reform of the law for the public good. We believe our top legislative priority fits the bill.

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

 

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The New York City Bar Association, led by its Task Force on the New York State Constitutional Convention, has issued a Report on Delegate Selection Procedures.

In November 2017, New York State voters will be asked whether the state should convene a constitutional convention to amend the state constitution. This question is placed on the ballot every 20 years. Should voters approve calling a convention next year, delegates to the convention would be elected in 2018.

The Task Force’s report examines the procedures currently in place for selecting delegates to the convention and makes certain recommendations for statutory change, with an eye toward making the process more open, less subject to the control of political leaders and more likely to result in a convention reflective of the will of the State’s population.

“Although the Task Force thinks these changes would improve the process,” said Margaret Dale, co-chair of the Task Force along with Hon. Michael Sonberg, “we do not believe that whether or not such changes are implemented should be a determining factor when deciding if a convention should be held.”

The Task Force recommends that:

  • Judges, legislators and other state and local government officials should have the opportunity to run for constitutional convention delegate.
  • Though the Task Force has concerns about whether government officials elected as delegates should be able to accept the delegate salary in addition to the salaries they earn from their government position, current constitutional provisions lead to the conclusion that all public officials should be entitled to collect delegate salaries in addition to their other salaries, as has been done at past conventions.
  • Service as a constitutional convention delegate should not count as credited time under any public pension system.
  • Voters should be able to cast votes for up to three candidates in the election of district delegates.
  • There should be no slate voting for the 15 at-large delegates; the names of the candidates for delegate should appear on the ballot.  Voters should be able to cast votes for up to 15 of the at-large candidates, with no more than one vote cast for a particular candidate.
  • Petition signature requirements should be reduced for candidates for convention delegates; the requirement that at-large candidates collect at least 100 signatures from half of the congressional districts in the state should be eliminated.  Petitioning requirements should be further eased.
  • There should not be a shift to nonpartisan elections for convention delegates.
  • While ideally there should be a system for public financing of all state elections, including the election of convention delegates, and such a system has been proposed by the Governor, if there is no state public financing system ultimately put in place, the Task Force believes that the difficulty of setting up a public campaign financing system solely for the delegate election is so great that we cannot recommend such a one-time program be created.
  • If the voters choose to hold a constitutional convention, there should be a voter guide printed for the delegate selection election of 2018, and a voter guide also should be prepared for the ballot questions that are submitted to the voters by the constitutional convention.

The report can be read here: http://bit.ly/1PPldnO

Read more about the Task Force here: http://bit.ly/1XwamUQ

 

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The New York City Bar Association has released its 2016 New York State Legislative Agenda. This agenda represents only a portion of the dozens of positions generated by our committees over the course of each legislative session. It focuses on issues that are relevant to the current legislative debate or of particular importance to the City Bar, as well as legislative proposals drafted by our committees.

The following are the agenda items for 2016:

  • Support efforts to bring meaningful ethics, rules and campaign finance reform to Albany.
  • Support the Judiciary’s 2016-17 Budget Request, including adequate funding for civil legal services.
  • Advance policies and reforms that will reduce mass incarceration, starting with raising the age of criminal responsibility to 18 years old for all crimes, enhancing alternatives to incarceration, and allowing for sealing of criminal records under certain circumstances.
  • Support legislation that would allow New York to recognize equivalent out-of-state occupational licenses for military spouses.
  • Extend Temporary Disability Insurance benefits to cover family care leave from the workplace.
  • Building on the progress achieved through last year’s enactment of much of the Women’s Equality Act, support efforts to:  1) permit the award of reasonable attorneys’ fees, costs and exemplary damages to a prevailing plaintiff in all cases involving unlawful discriminatory practices under the New York Human Rights Law, not just in cases of gender discrimination; and 2) recognize a woman’s fundamental right to make decisions regarding her reproductive health, and makes a clear affirmative statement that all New Yorkers have the right to use, or refuse, contraceptives and that all New York women have the right to carry a pregnancy to term or to terminate a pregnancy.
  • Modernize New York’s public procurement construction laws to provide public owners with a wider variety of procurement and delivery modes, as necessary and appropriate, to reduce costs, speed delivery and improve quality and safety.
  • Support access to justice initiatives, including proposals to consolidate the state’s major trial courts and requiring judicial appointments by a commission of lawyers and non-lawyers.
  • Advance City Bar-drafted bill to amend the Arts and Cultural Affairs Law to enhance protections under the law for art authenticators.
  • Support legislation to reform and modernize the administration of class actions in New York’s courts by amending Article 9 of the Civil Practice Law and Rules.
  • Advance legislation, along with the New York State Bar Association, to amend the Judiciary Law to provide that communications between a consumer of legal services and a legal referral service or lawyer referral service be deemed to be privileged on the same basis as the privilege provided by law for communications between attorney and client.
  • Advance City Bar-drafted legislation to amend the Real Property Tax Law to coordinate the treatment of three types of tax transparent entities eligible for real property tax abatements.
  • Oppose legislation concerning jurisdictional consent by foreign business organizations authorized to do business in New York.

The City Bar’s 2016 New York State Legislative Agenda can be viewed here: http://bit.ly/1opseor

 

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The New York City Bar Association’s UN Committee participated in a United Nations Special High-Level Event on Human Trafficking last week organized by “The Group of Friends United Against Human Trafficking” in collaboration with the UN Office on Drugs and Crime.

A statement prepared by the Committee discussed the City Bar’s policy work in the area of trafficking, including support for the Trafficking Victims Protection Act, the Violence Against Women Act and New York’s enactment of an anti-trafficking law.

In addition, the remarks highlighted the work of the City Bar Justice Center’s Immigrant Women and Children Project, which has been providing hands-on assistance to survivors of human trafficking since 2002, assisting in immigration, criminal and civil legal matters. The Project’s clients come from countries around the globe, including China, the Dominican Republic, Trinidad, Colombia, Brazil, India, Nigeria, and Russia.

The statement can be read here: http://bit.ly/1Ls8tBv

 

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Texas Tech University School of Law won the final round of the 66th Annual National Moot Court Competition held February 12th at the New York City Bar Association. The winning team was comprised of Kristen Vanderplas, C.J. Baker, and Shelby Hall and coached by Rob Sherwin. Georgetown University Law Center was the runner-up, with a team comprised of Kyle Crawford, Anna Deffebach, and Stephen Petkis and coached by Ani-Rae Lovell.

Best Brief honors went to Texas Tech University School of Law, with Runner-Up Best Brief awarded to William Mitchell School of Law (Paige Fishman, Bryan Jarvis, and Keriann Riehle).

Best Individual Speaker went to Kyle Crawford of Georgetown University Law Center, with Runner-Up Best Individual Speaker going to Anna Deffebach, also of Georgetown University Law Center.

The final round was judged by Hon. Susan L. Carney, U.S. Court of Appeals for the Second Circuit; Hon. Nicholas G. Garaufis, United States District Court, Eastern District of New York; Hon. Rolando T. Acosta, New York State Supreme Court, Appellate Division, First Department; Hon. Judith J. Gische New York State Supreme Court, Appellate Division, First Department; Hon. Michael Sonberg, New York State Supreme Court, Criminal Term; Debra L. Raskin, President, New York City Bar Association; and Michael W. Smith, President, American College of Trial Lawyers.

This year’s problem addressed the contours of the “personal benefit” requirement for insider trading liability as well as the standard for admissibility of grand jury testimony in subsequent criminal proceedings.

The final argument was the culmination of more than six months of preparation and arguments by more than 158 teams from 113 law schools across the country. The top two teams from each of the 15 regional competitions advanced to the February final rounds.

The Competition is co-sponsored by the American College of Trial Lawyers and the National Moot Court Competition Committee of the New York City Bar Association.

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