The New York City Bar Association’s Committee on Professional Ethics has issued an opinion stating that New York lawyers must consider a wide range of ethical issues before entering into business relationships with non-legal organizations.

The opinion was prompted by an inquiry from a New York lawyer who was contemplating an arrangement with a non-legal organization based in another state.  Under the proposed arrangement: (1) the lawyer would review forms prepared by the non-legal organization on behalf of its customers to determine whether they comply with certain applicable legal requirements; and (2) the non-legal organization would pay the lawyer a percentage of the fees paid by the customers to the organization, pursuant to a pre-determined fee schedule. According to the inquiry, the lawyer would have no direct communication with the customers of the non-legal organization. The lawyer inquired as to whether this arrangement is ethically permissible under the New York Rules of Professional Conduct (the “Rules”).

As the Committee notes, “this question is particularly relevant in the current legal environment, where attorneys may be considering a variety of creative business arrangements to enhance their economic opportunities,” and that attorneys considering such arrangements “must be mindful of a substantial number of ethical issues.”

The opinion explains that as many as 21 different Rules of Professional Conduct may bear on whether a New York lawyer is permitted to enter the arrangement described above, including Rules 1.1(a), 1.2(a), 1.2(c), 1.4, 1.5(a), 1.5(b), 1.6(a), 1.7(a), 1.8(f), 1.10(e), 1.10(f), 5.4(a), 5.4(c), 5.5(a), 5.5(b), 5.8(a), 5.8(b), 7.2(a), 7.2(b), 8.5(a), and 8.5(b).

Due to the wide range of ethical issues involved, states the opinion, at a minimum the lawyer should consider the following key questions in determining whether the arrangement complies with the Rules:

  • Is the lawyer’s conduct governed by the Professional Responsibility Rules of New York or some other jurisdiction?
  • Does the lawyer’s conduct constitute the unauthorized practice of law in another jurisdiction?
  • Is the non-legal organization engaged in the unauthorized practice of law?
  • Does the lawyer’s contemplated arrangement with the non-legal organization constitute an impermissible multidisciplinary practice?
  • Does the contemplated payment structure constitute improper fee splitting?
  • Does the contemplated payment structure constitute the payment of a referral fee?
  • Who is the lawyer’s client?

As to this last question, the lawyer must consider additional ethical concerns if the proposed business arrangement results in an attorney-client relationship being formed with the individual customers (a question of law on which the Committee could not opine). In that situation, the lack of direct communication with the clients may make it difficult for the lawyer to fulfill many of his or her ethical obligations, including duties of competence, communication, confidentiality, and more.

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

The Opinion can be read here: http://bit.ly/1i1oRhN

 

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Looking ahead to the 2014 State of the State message, the New York City Bar Association urges Governor Cuomo to put first and foremost a strong package of reforms in government ethics. New Yorkers deserve clean government. The recent report of the Moreland Commission to Investigate Public Corruption confirms that, sadly, deplorable conduct remains rampant in Albany. The Commission’s report makes a number of excellent reform proposals. The City Bar encourages the Governor and the Legislature to enact a strong reform package as soon as possible in the 2014 legislative session.

 

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Today the New York City Bar Association presented testimony to the New York State Assembly’s Standing Committee on Health in support of legislation that would authorize and regulate the sale of medical marijuana in New York State.

Today’s testimony at the Nassau County Legislative Chambers, by Betsy Lambert, of the City Bar’s Health Law Committee, and Charles Sanford Smith, of its Drugs and the Law Committee, was based on the City Bar’s most recent report on medical marijuana. The report, which was developed with the assistance of the City Bar’s Civil Rights, Land Use and Planning, and Family Court & Family Law Committees, was submitted with the testimony.

In her submitted testimony, Lambert said, “I can sum up the findings of our report simply and as follows:  patients who would benefit from and are approved to use medical marijuana should be able to easily gain access to it; specifically, they should be able to receive approved amounts of a quality of medical marijuana that meets standards for growth and sale under the law – a law which we hope will become a reality in New York this year.”

Smith said that medical marijuana “is not a hoax or a cover for legalization. With 21 states and the District of Columbia providing safe access to medical marijuana, over half of the United States’ population lives in a state where they have access to medical cannabis. It is time for New York to participate in this process.” He added that the proposed legislation “is among the strictest in the country and accomplishes the dual goal of providing relief to suffering patients and protecting the public interest in regulating a controlled substance.” Speaking as a defense attorney, he said, “the reality of our current legal and enforcement environment permits recreational users of this substance to enjoy its broad availability on the black market, and yet criminalizes its use by the sick and desperate. This disparity in treatment is against the public interest, is bad policy and results in the needless denial of likely beneficial treatment and palliative relief for those who legitimately seek it.”

Both Lambert and Smith cautioned against passing a bill that would unnecessarily and unduly restrict patients’ access to medical marijuana, and recommended that the Health Committee reconsider amendments that had been introduced at the end of last session.

The City Bar first expressed support for a bill permitting the sale of medical marijuana in New York 16 years ago.

Today’s submitted testimony, including the City Bar’s most recent report on medical marijuana, can be read here: http://bit.ly/18zaXQs

 

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Statement by Citizens Union, the Fund for Modern Courts and the New York City Bar Association:

As Mayor Michael Bloomberg today swears in his last group of judges for New York City’s courts, we applaud him for following the practice, originally adopted as an Executive Order by Mayor Ed Koch, of having an independent committee on the judiciary select a limited number of highly qualified candidates from which the Mayor must choose in making his appointments.

Mayor Bloomberg further subscribed to a practice first adopted by Mayor Koch: that the New York City Bar Association’s Judiciary Committee would review every potential appointee and that he would not appoint anyone who was not approved by the Committee. The City Bar Judiciary Committee, which has been in existence for more than 140 years, seeks to ensure that judicial candidates have the necessary integrity, impartiality, intellect, legal knowledge, industriousness and temperament for service on the bench.

Our groups urge that Mayor-elect Bill de Blasio continue the nonpartisan merit-based approach of his predecessors. Each independent committee brings a different perspective and has access to different sources of information, and the partnership between the Mayor’s office and these committees helps ensure that the city’s judicial appointments are of the highest possible quality and reflect the full diversity of New York, and that the judiciary remains strong and independent.

 

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Mayor Michael Bloomberg is about to swear in the last group of judges that he will be appointing to New York City’s courts.  As many of you know, the Mayor makes all appointments to the City’s Family Court and Criminal Court, and also appoints interim Civil Court Judges.  Every judge now sitting in the Family and Criminal Court has been appointed or reappointed during Mayor Bloomberg’s tenure.  What has been largely unheralded during the course of Mayor Bloomberg’s  judicial appointments is that he  has consistently followed the practice, originally adopted as an Executive Order by Mayor Koch, of having an independent committee on the judiciary select a limited number of candidates from which the Mayor must choose in making his appointments.

Mayor Bloomberg further subscribed to a practice first adopted by Mayor Koch:  that the New York City Bar Association’s Judiciary Committee would review every potential appointee and that he would not appoint anyone who was not approved by our Judiciary Committee. The Judiciary Committee, which has been in existence for more than 140 years, is comprised of over 50 members and reviews all candidates for judicial office in New York City.  The Committee seeks to ensure that judicial candidates have the integrity, impartiality, intellectual ability, knowledge of the law, industriousness and judicial demeanor and temperament that qualifies them for service on the bench.

The partnership between the Mayor’s office and the City Bar’s Judiciary Committee has been a strong and effective one, recognizing that each independent committee brings a different perspective and has access to different sources of information, and that having both review potential candidates better assures that the Mayor’s appointments will be of high quality. We applaud Mayor Bloomberg for his consistent adherence to this process, and to the principle of judicial independence, which is, after all, the principle on which the City Bar was founded in 1870, when 200 lawyers came together to stand up to the rampant corruption and cronyism among judges in the era of Tammany Hall.

It is our sincere hope that the approach of Mayor Bloomberg and his predecessors to judicial selection will be maintained by Mayor-elect Bill de Blasio and his incoming administration, because we believe it is the best way to sustain the integrity and strength of the City’s judicial system.  To that end, we look forward to continuing the fruitful and important relationship that has been established between the Office of the Mayor and the New York City Bar Association in evaluating judicial appointees.

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

 

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Where recordings of interrogations “demonstrate promises, threats and tactics that offend notions of fundamental fairness,” confessions resulting from those interrogations must be excluded as evidence, according to an amicus brief filed by the New York City Bar Association in People v. Thomas.

The brief, filed with the New York State Court of Appeals by the City Bar’s Criminal Law and Criminal Advocacy Committees, addresses the case of Adrian Thomas, convicted of murder in the death of his infant son. The brief recounts the details of Thomas’s nine-hour interrogation, including that the police interrogators, among other things:

  • fabricated conversations with doctors, and claimed that the confession could help doctors treat his son although they knew the infant was brain dead at the time;
  • threatened to arrest Thomas’ wife, the mother of his six children, if he did not explain how he caused the injuries;
  • promised Thomas over 30 times that he would be released if he admitted to “accidentally” injuring his son;
  • threatened Thomas that if he didn’t explain how this was an accident then someone else would go after him criminally.

Although Thomas proffered an expert, Dr. Richard Ofshe, to explain how such tactics can lead to false confessions, the trial judge denied the motion. The Appellate Division upheld the trial court’s decision admitting Thomas’s statements as voluntary and refusing to permit the defense to present expert testimony on false confessions.

“The tactics used in the recorded interrogation in this case are not consistent with either New York or Federal Constitutional law” the brief states. “Fabricating conversations with doctors and falsely telling a person that someone may die if they do not confess is such a strategy. This is particularly so where, as in this case, a parent is told that his child will die if he does not speak and is accused of not wanting to save his child if he does not provide an explanation that satisfies the officer. The tactics used in the interrogation of Mr. Thomas do not just violate due process, they also increase the risk of a false confession.”

These high-pressure tactics are, according to the brief, “precisely those that have been condemned as unconstitutional by this court time and time again.”

The brief also argues that denying the defense the opportunity to present an expert on false confessions also “undermined the integrity of the truth-seeking function of the trial, which is brought to bear when both sides vigorously present their case.”  The Court of Appeals has held that such testimony should be admitted “in a proper case,” and, according to the brief, this was such a case, as the jury had to review “voluminous evidentiary materal, in addition to the trial testimony, in order to determine whether a confession was truthful” and jurors often do not have their own life experience to provide the context for examining whether a confession is false.

The brief can be read here: http://bit.ly/1d6VBQv

 

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The New York City Bar Association will host its ninth annual Thomas E. Dewey Medal Presentation Ceremony on December 12, 2013, featuring keynote speaker Lanny A. Breuer. The award is given every year to outstanding assistant district attorneys in each of the District Attorney’s offices within New York City and the Office of Special Narcotics Prosecutor for the City of New York.

This year’s medal winners are:

Nicole Keary, Assistant District Attorney, Bronx County
Joan B. Gabbidon
, Senior Deputy District Attorney, Kings County
Nitin Savur, Deputy Chief, Trial Division, New York County
Jessica L. Melton, Senior Assistant District Attorney, Queens County
Joseph Tesoriero, Assistant District Attorney, Special Narcotics Prosecutor
Mark A. Palladino, Deputy Chief, Investigations Bureau, Richmond County

Presenter: Thomas E.L. Dewey, Chair, Dewey Medal Committee

Keynote Speaker: Lanny A. Breuer, Vice Chair, Covington & Burling LLP; Former Assistant Attorney General, Criminal Division, U.S. Department of Justice; Special Counsel to President Clinton (1997-1999); Former Assistant District Attorney in Manhattan

Opening Remarks: Carey R. Dunne, President, New York City Bar Association

When:    Thursday, December 12, 2013, 6 PM

Where:    New York City Bar Association, 42 West 44th Street

Free of charge. Open to the public. Please register here.

About Thomas E. Dewey
Among prosecutors in New York County, Thomas E. Dewey is remembered as having ushered in the era in which the District Attorney’s office has been staffed by professional prosecutors chosen on merit rather than through political patronage. Dewey first came to the public’s attention as a prosecutor in the 1930s, instituting successful criminal proceedings against gangsters, bootleggers and organized crime figures of the day. By 1937, Dewey was elected District Attorney of New York County, where he served one term before resigning to run for governor.

 

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The New York City Bar Association supports passage, without amendment, of sections 1031 and 1033 of S. 1197, the National Defense Authorization Act for FY 2014, as recently reported out by the U.S. Senate Armed Services Committee, on a bipartisan vote. Section 1031 clarifies and improves the procedures for transfer or release of Guantanamo Bay detainees to foreign countries. Section 1033 allows for the transfer of Guantanamo detainees to the United States for detention and trial.

In a report, the Association states, “Both provisions are in the best interests of justice and fairness, the reputation of the United States in the international community, national security, and efficiency and economy.”

Section 1031 establishes the procedures for the Secretary of Defense to exercise authority to transfer or release Guantanamo detainees (1) who have been determined under periodic review procedures established by current law to be no longer a threat to national security, (2) whose transfer or release is required by an order of a court or other competent tribunal of the United States, or (3) who have been tried for conduct that also served as the basis for holding them in detention and have either been acquitted or convicted and served their sentence.

“By facilitating the transfer of these detainees, Section 1031 will help further the goal of closing Guantanamo, thereby eliminating a symbol of injustice that has been used as a propaganda tool to recruit terrorists, caused friction with our allies, and undermined our nation’s ability to obtain international cooperation in the fight against terrorism. Closing Guantanamo would help restore America’s reputation as a leader for the protection of human rights and the rule of law,” the report states.

Section 1033 would provide the executive with the option of using the federal courts as an alternative to military commissions to prosecute detainees. Transfers to the United States would be permitted on the Secretary’s determination that they are in the interest of national security and that precautions have been taken to protect public safety. While military commissions would remain an option for use in appropriate circumstances, “experience has shown that the federal courts have been a far more efficient and successful means of prosecuting persons accused of terrorist offenses, that they are more likely to be viewed by the world community as a fair and just process, and that such prosecutions can be carried out without compromising public safety or national security. Federal prosecutions are also not subject to the legal controversies that continue to surround military commissions,” the report states.

The report can be read here: http://bit.ly/18J44MM

 

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