The University of Georgia School of Law won the final round of the 64th Annual National Moot Court Competition, held last night at the New York City Bar Association. The winning team was comprised of Steven Strasberg, Ben Thorpe, and Emily Westberry. Emory University School of Law was the runner-up team, comprised of MaryGrace Bell, Hunter Robinson, and Kyle Winchester.

Best Brief honors went to the University of Pennsylvania School of Law: Omar Madhany, Bianca Nunes, and Tian Wen, with Runner Up Best Brief awarded to University of Utah S. J. Quinney College of Law: Jeremy Christiansen and Stephen P. Dent.

Best Individual Speaker went to Ben Thorpe of the University of Georgia School of Law, with Runner-Up Best Individual Speaker going to Hunter Robinson of the Emory University School of Law.

From left: Hon. Edgardo Ramos, United States District Court, SDNY; Hon. Denny Chin, United States Court of Appeals for the Second Circuit; Trudi Hamilton, Fellow, American College of Trial Lawyers; Hon. Ellen Gesmer, New York State Supreme Court; Steven Strasberg, Emily Westbury and Ben Thorpe of the University of Georgia School of Law; Carey R. Dunne, President, New York City Bar Association; Hon. Judith J. Gische, Appellate Division, First Department; and The Honorable Richard J. Sullivan, United States District Court, SDNY.

The final round was judged by: Hon. Denny Chin, United States Court of Appeals for the Second Circuit; Hon. Ellen Gesmer, New York State Supreme Court; Hon. Judith J. Gische, Appellate Division, First Department; Hon. Edgardo Ramos, United States District Court, Southern District of New York; Hon. Richard J. Sullivan, United States District Court, Southern District of New York; Trudi Hamilton, Fellow, American College of Trial Lawyer; and Carey R. Dunne, President, New York City Bar Association.

This year, the Competition presented two constitutional issues. The first concerns whether a state law mandating that beverage retailers post a sign in their stores about the negative health effects of certain beverages violates the First Amendment. The second arises under the Commerce Clause and considers whether a state law that requires a unique mark to be placed on beverage containers sold within the state violates the Dormant Commerce Clause.

The final argument of the Competition was the culmination of more than six months of preparation and arguments by more than 194 teams from over 131 law schools in every geographical area of the country competing at the regional and national levels.

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

 

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The New York City Bar Association urges passage of the Military Justice Improvement Act of 2013, S.1752 (“MJIA”), which would put legal decisions in the hands of experienced prosecutors, independent from the chain of command, for serious crimes that are not uniquely military in nature.

According to a report drafted by the Association’s Committees on Sex & Law and Military Affairs & Justice, this much needed bipartisan amendment to the Uniform Code of Military Justice, to change the designation of key decision-making authority for courts martial, “offers an opportunity to modernize our military justice system and address the epidemic of sexual assault in our military.”

Moreover, notes the report, this measure would put the United States military in step with the military justice systems of other democracies that share a common law tradition, most of which have “revamped their military justice systems and removed the disposition of certain crimes outside of the chain of command to be handled independently by trained prosecutors or commissions.”

The report continues, “[t]here is widespread agreement that legitimacy is an essential feature of any system of criminal justice. When the criminal process is perceived as fair and legitimate, its decisions are more likely to be accepted as accurate. Many sexual assault survivors cite a lack of confidence in the military justice system—concern that no conviction or even formal prosecution will result and fear of reprisals.”

In May 2013, the Department of Defense estimated that there were 26,000 service members who experienced sexual assault, a 37% increase from FY 2010. However, only 3,374 sexual assaults were reported in FY 2012. As the Committees state, “we believe that the visibly professional approach proposed in the MJIA would strengthen confidence in the military justice system and encourage more sexual assault survivors to report.”

Ultimately, by placing authority to prosecute and make other key decisions for serious, non-military crimes in the hands of military prosecutors rather than the chain of command, the report concludes, “the MJIA would improve the perceived fairness of courts-martial and ensure justice and accountability.”

The report may be read here: http://bit.ly/1bWUmpj

 

 

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The City Bar hosted New York City’s new Public Advocate, Letitia James, for a breakfast with City Bar committee members today. The event, attended by representatives of many of the City Bar’s 61 committees that do policy work at the City level, provided an opportunity for members to hear directly from the Public Advocate about her policy agenda.

Ms. James outlined her extensive agenda items, including public housing, homelessness, education reform and recidivism. Attendees were able to ask questions related to their committee work, providing a unique opportunity for an open dialogue on some of the pressing issues facing the City. Of note were discussions about how the Public Advocate’s office could assist in linking constituents up with legal services providers and how best to serve members of the community most in need of legal assistance.

Public Advocate

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The New York City Bar Association applauds Chief Judge Lippman’s initiative to establish a Pro Bono Scholars program, permitting students to take the New York State bar exam during their third year of law school and gain accelerated admission to the Bar, as long as they use the latter half of that third year to provide full-time legal services to the poor. This initiative is consistent with the recommendations in the recent report of the City Bar’s Task Force on New Lawyers in a Changing Profession, which urged that law schools seek to provide “practice ready” lawyers and that the third year of law school provide practical experience or otherwise better prepare graduates for their legal careers. The Chief Judge’s plan would accomplish these goals while addressing another crucial concern: providing legal services to the vast numbers of people who, despite the best efforts of legal services providers and the Bar generally, are unable to gain access to legal services and thus either do not pursue their legal rights or try to do so on their own. Studies show that increasing access to civil legal services provides the added benefit of saving the State money. We look forward to supporting the Chief Judge in undertaking this effort.

 

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The New York City Bar Association strongly recommends that the Legislature adopt the Judiciary’s 2014-2015 Budget Request in its entirety.

After sustaining a $170 million dollar budget cut in 2011, and zero growth budgets in 2012 and 2013, it is essential that the Legislature fund the Court’s modest 2.5% proposed increase in its 2014-2015 budget request, states the Association in a report by its Council on Judicial Administration. “The proposed budget is fiscally prudent and helps address vital unmet legal needs of New York’s most vulnerable individuals.”

With this small proposed increase (amounting to $44.2 million dollars), the Office of Court Administration (OCA) reports that it will be able to maintain, restore and enhance essential court functions by continuing to streamline administration and reorganize and consolidate offices and programs, a process it began in 2011 when the courts sustained a $170 million cut in funding.

The Judiciary “Road to Recovery” Budget proposed by OCA would add $15 million in funding for vitally needed Civil Legal Services (which studies show save the State money), permit the Judiciary to fill some critical positions, and allow the courts to remain open until 5:00 p.m. instead of shutting down at 4:30 p.m. to avoid overtime expenditures.

In addition, OCA has proposed adding 20 new Family Court judgeships throughout the State, a proposal which would need to be separately enacted and funded by the Legislature. The City Bar supports adding these judgeships to handle the enormous need, as the number of judges has increased only 8.8% statewide over the past 30 years while the Family Court caseload has increased 90%. “Family court is stretched to the breaking point, if not beyond,” states the report.

The City Bar outlines how cutbacks in the Judiciary Budget over the last three years have had a “devastating impact on the courts and the people they serve,” with the judicial workforce being reduced by more than 1,900 positions, including long lines to get into courthouses, lengthy trial delays impacting everything from commercial cases to guardianship and child custody cases, inability to retrieve necessary court files and certificates, and longer incarceration time for criminal defendants.

The City Bar’s report concludes, “Any reduction in this budget will result in the de facto denial of justice to countless New Yorkers, including many pro se individuals seeking to maintain a roof over their heads, public assistance for the basic necessities of life, and access to frozen bank accounts and garnished wages.”

The report may be read here: bit.ly/1nOUdsS

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Nearly 450 people defied the latest snowstorm to pack the New York City Bar Association’s meeting hall last night for a rare opportunity to see two Supreme Court justices speak and interact with each another. The occasion was the annual Justice Ruth Bader Ginsburg Distinguished Lecture on Women and the Law, which was delivered by Justice Elena Kagan.

Justice Elena KaganJustice Kagan’s lecture was titled “Justice Ginsburg’s Greatest Hits,” and focused on six cases Justice Ginsburg worked on, three as a litigator and three as a judge. Among them were United States v. Virginia, in which Justice Ginsburg ruled against the Virginia Military Institute’s male-only admissions policy, and Ledbetter v. Goodyear, in which Justice Ginsburg’s dissent contributed to the enactment of the Lilly Ledbetter Fair Pay Act. Justice Kagan also covered the 1976 case of Craig v. Boren, which centered on Oklahoma’s law that allowed women to buy beer at age 18, while men had to be 21 to purchase the same. “Craig wanted beer, and sued to get it,” said Justice Kagan.

“As a litigator, and then as a judge, she changed the face of American anti-discrimation law,” Justice Kagan said of Justice Ginsburg. “More than any other person, she can take credit for making the laws of this country work. And in doing so, she made possible my own career, and later on the careers of today’s devotees of the Notorious RBG Tumblr and the Ruth Bader GinsBlog.”

Those were references to the lighter side of the evening, in which Justice Kagan described Justice Ginsburg’s remarkable influence on the wider culture: the “Notorious RBG rap video” (of which Justice Ginsburg is reportedly a great fan), the opera and the comic book she inspired, the Buzzfeed ‘listicle’ on “19 Reasons Ruth Bader Ginsburg is Your Favorite Supreme Court Justice,” and the Ruth Bader Ginsburg bobblehead that Justice Kagan displayed on the dais.

Not surprisingly, the largest demographic in the audience for the talk was young women, of whom Justice Kagan said, “I’m just delighted to see many, many here.” One young woman asked Justice Ginsburg for any career advice she could give her. Justice Ginsburg replied, “I have enjoyed everything I have done in the law. What made me so satisfied in my career is what Justice Kagan spoke about—that I spent a lot of my time doing something outside myself, doing something that I hope makes life better for people who are not as fortunate. So you will have a skill that you can use to make a living, but also to help make things a little better for other people.”

From left: City Bar Executive Director Bret I. Parker; Justice Elena Kagan; Justice Ruth Bader Ginsburg; City Bar President Carey R. Dunne

For those who couldn’t make it, here is the entire evening on video:

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The new year is often a time for people to reflect upon personal and professional goals. It is no different at the New York City Bar Association, and I would like to take this opportunity to share with you our policy goals and resolutions for City Hall, Albany and Washington in 2014.

This year brings New York City a new Mayor – its first in 12 years. Recognizing that this is a pivotal time for our city, this past spring we held a forum for the candidates and issued a report, “Policy Recommendations for New York City’s Next Mayor,” so that we could weigh in, during the campaign season, on issues of importance to our committees. The report, representing a collaborative effort of 27 committees, was also designed to serve as our primary platform for goal-setting and advocacy over the first several months of the new mayoral administration.

In the report we recommended, among other things, that the new Mayor encourage and empower City residents and commuters to reduce their carbon footprint; remove barriers to access faced by New Yorkers in need of subsistence benefits; reform the teacher disciplinary hearing process; support programs and initiatives to assist the tremendous number of unrepresented litigants in civil cases affecting housing, jobs and consumer debt; champion policies to reduce crime recidivism; strengthen the City’s commitment to punishing perpetrators of human trafficking; strengthen the foster care system and promote greater child wellness; and study how to create a rational and fair property tax system. We also urged that the new Mayor maintain the merit-based independence of his judicial appointments to City courts, including by continued reliance on evaluations by our own Judiciary Committee, and I am pleased to report that Mayor Bill de Blasio has agreed to do so.

Over the coming months, with the assistance of the New York City Affairs Committee, we will communicate these and other recommendations to the new governmental leadership in the City: Mayor de Blasio, Public Advocate Letitia James, Comptroller Scott Stringer, City Council Speaker Melissa Mark-Viverito, Corporation Counsel Zachary Carter, and other newly appointed policymakers, so that the City Bar can project its public voice in the most effective way possible.

In Albany, 2013 brought quite a bit of negative press regarding certain state lawmakers, but our hard work paid off as we saw 15 bills supported by our committees pass both houses of the legislature. Through our committees, we issued 77 new legislative reports, updated and reissued 27 reports, and proposed four new bills. These reports provide the basis for our 2014 state legislative agenda. Here is a sample of what we’ll be working on: supporting legislation that would bring public campaign financing to New York and institute stronger ethics laws; supporting legislation that would allow properly certified patients to gain easy access to medical marijuana that meets standards for growth and sale under the law; updating New York’s Uniform Commercial Code; supporting the Gender Expression Nondiscrimination Act so that gender identity and gender expression are included as protected classes under the New York Human Rights Law; supporting efforts to update the sex offender risk assessment tool; protecting the inheritance rights of posthumously conceived children; and analyzing and speaking out against legislation that would lessen consumer protections vis-à-vis questionable debt collectors, payday lenders and so-called budget planners.

Our committees have drafted four bills that we will try to advance in Albany. The first would clarify and expand the category of claimants under the Unjust Conviction and Imprisonment Act so that individuals are not unreasonably barred from bringing claims; the second would allow assignment of counsel for the purpose of preparing vacatur petitions on behalf of trafficking victims so that previous prostitution convictions can be removed from their criminal records; the third would create a statewide program to provide mortgage bridge loans to homeowners under certain circumstances; and the fourth would amend the Arts and Cultural Affairs Law to better protect art authenticators against frivolous lawsuits. We are in the process of working with the drafting committees to create and carry out effective advocacy campaigns for these measures.

Finally, among our many efforts on the federal level, we continue to advocate in Washington to limit the effects of the sequester and other budget pressures on funding for legal services for the poor and on funding for the federal court system. We have also advocated extensively for meaningful immigration reform, working with both houses of Congress, and have advocated for legislation ranging from providing more presidential authority in the relocation of Guantanamo detainees, to opposition to the Defense of Marriage Act, to opposing legislation that would limit states’ ability to regulate the manufacture of agricultural products. In the regulatory area, our financial services committees continue to monitor and comment on implementation of the Dodd-Frank and JOBS Acts.

We will keep you updated on all of these efforts, as well as on any new issues that arise, as the year progresses.

Carey R. Dunne 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 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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