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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The New York City Bar Association’s Lawyer Assistance Program (LAP), a free, confidential service for attorneys, judges, law students and their family members in New York City struggling with substance abuse and/or mental health issues, is celebrating its 15th year in operation.

The occasion will be marked on June 16th with a celebration in conjunction with the 8th Annual Volunteer Appreciation Dinner. That same day, LAP will host a Volunteer Training from 10:00 a.m. – 4:00 p.m. at the City Bar, with CLE credit available. The program, co-sponsored by LAP, the Brooklyn Bar Association’s Lawyers Helping Lawyers Committee and the New York State Bar Association’s Lawyer Assistance Program, is open to anyone interested in learning about the challenges lawyers face and/or becoming a volunteer for LAP. To register, click here.

Those interested in learning more about the program and how to support it can find information here.

 

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The New York City Bar Association welcomes 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.”

“In our advocacy to Congress for representation in deportation hearings, policymakers repeatedly asked us: ‘How much does it cost?’” said Lenni Benson, Chair of the City Bar’s Immigration and Nationality Law Committee. “This study helps demonstrate that counsel for indigents facing detention and deportation is not only fairer and consistent with U.S. justice, but cost-effective.”

“Many immigrants are deported each year, leaving families behind, who may have had a right to remain in the U.S. but were unable to assert that right because they lacked legal representation,” said Debra L. Raskin, President of the City Bar.  The NERA report should eliminate the argument that the federal government cannot afford to provide this essential representation to those in deportation proceedings.”

The NERA report makes these key findings:

  • A national immigration appointed counsel system “would pay for itself” through federal fiscal savings under plausible assumptions. Savings come from
    • Detention (“$173-174 million/year” and “likely substantially more”);
    • Federal foster care outlays ($18-21 million/year);
    • Transportation ($10 million/year); and other areas.
  • National federal defenders could help 17,550 eligible immigrants (14,754 of them detainees) stay in the United States with their families.
  • Providing counsel to immigration detainees alone—like New York’s pilot project, but nationally—“would more than pay for itself,” saving $38 million/year.

Notably, NERA’s report conservatively does not quantify other savings.  But as the report notes, additional benefits may include:

  • Detention cost savings from lawyers at bond hearings helping secure release.
  • Economic benefits from those released detainees working, supporting their families, and paying taxes.
  • State cost savings (such as state foster care costs).
  • The potentially “substantial” economic and social benefits from persons avoiding deportation and making “productive investments in their business, home, and education,” with their increased spending and potential multiplier effects.
  • Administrative savings from more efficient immigration courts.  Appointed counsel would save about 87,000 hearings and 115,000 hours of court staff time per year. In a bipartisan study, co-authored by Committee Chair Professor Benson, immigration judges overwhelmingly agreed that lawyers would help them conduct cases more efficiently and quickly.

The City Bar asked NERA for its independent pro bono analysis to inform the debate.  NERA was retained by WilmerHale LLP, which has been providing extensive pro bono assistance to the New York City Bar in its immigration reform advocacy.  “NERA’s economic assessment is valuable to policymakers, and its model is a groundbreaking analytical framework for researchers,” said Benson.  “Holistic economic analysis such as this is a necessary part of the access to justice debate.  Policymakers have too often considered only costs of civil legal assistance and then naturally cut costs.  Yet increasing funding for legal services typically generates economic benefits that exceed the costs.”

Benson added, “In the last seven years over two million people have been deported, with their U.S. families and children left behind.”  Against this backdrop, the City Bar’s support for immigration representation is longstanding.  In a 2013 position letter, the City Bar called for nationwide appointed counsel to indigent non-citizens in immigration proceedings, following its 2009 report advocating for appointed counsel for immigration detainees.  It also has advocated to increase funding in New York for immigrant legal services.

The City Bar Justice Center represents immigrant detainees and coordinates leading law firms’ pro bono assistance. Additionally, to expand the bar’s expertise, the City Bar’s Immigration & Nationality Law Committee has hosted panels on immigration reform and a training session on representing immigrants at bond hearings.  A separate subcommittee to improve access to counsel for immigrant children conducted six free trainings inside the New York City family courts last year.

The report can be downloaded here: http://www.nera.com/67_8564.htm

 

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