A Year of Remarkable Engagement – by John S. Kiernan

President’s Column, July 2017

The past year, for our Association, has been one of remarkable engagement. The City Bar plays many roles in enhancing the lives of New Yorkers and the professional development of our lawyer members, and all of these roles warrant recognition and celebration. But this column will focus on our Association’s outward-facing, public-interest role—our policy agenda—which has generated some of the past year’s most significant developments.

Even in ordinary and unruffled times, our 160 committees generate, on an almost continuous basis, a remarkable outpour­ing of public expressions of views, in the form of reports, proposals for legislative or regulatory change, letters to governmen­tal decision-makers, transitional memos to newly-elected presidents, governors, and mayors, public forums on matters of debate, and amicus curiae briefs to courts. The past year featured all of that and more – more than 170 such reports. As a bar association, we have witnessed and engaged on a succession of seminal-seem­ing developments in the past 12 months. These events have included the advance­ment of a progressive city and state agen­da on a scale almost without precedent regarding matters about which the City Bar has long advocated. These events have also included the challenges presented by a new presidential administration press­ing for significant changes, some of which stimulate important debate regarding and carry significant implications for our Asso­ciation’s historical mandate to protect and advance the rule of law, ensure protection of the rights and interests of the vulner­able, and support ongoing improvements in the fair, orderly, and efficient adminis­tration of justice.

Amid all this activity, when legal histori­ans of our City look back on 2017, they may mark it foremost as the year of the passage of the transformative piece of legislation known as 214-a, which provides for free legal representation to everyone under 200% of the poverty line who faces eviction from a home. This is the most significant step toward a legislative application of so-called civil-Gideon to ensure counsel for someone facing threatened loss of one of the essentials of life since the Supreme Court attached that right to everyone facing a potential loss of liberty 54 years ago in Gideon v. Wainwright. Through our Pro Bono & Legal Services Committee, the City Bar ac­tively supported this legislation. We com­missioned an analysis by the consulting firm of Stout Risius & Ross of the expect­ed savings associated with providing this counsel – in avoided public and private costs of homelessness, and in other avoid­ed costs – which became a significant component of the debate. We provided written and oral testimony in support of the legislation to the City Council, and worked with other groups in communi­cating with the Mayor’s Office of the Civil Justice Coordinator to advance consider­ation of this proposal and discuss how to phase it in. We can hope, without being accused of naiveté, that this legislation may be the first step toward a day when the notion that a poor person could be evicted from a home without counsel will be as unthinkable to our national con­sciousness as sending a person to prison without counsel seems now.

This has also been a year of truly extraor­dinary movement in New York State and City efforts toward criminal justice reform – largely in areas in which our criminal committees and our Task Force on Mass Incarceration have substantially participated and provided advocacy. This year has seen New York at long last relinquish its position as one of only two states that set age 16 as the age of adult criminal responsibility, passing raise-the-age legislation that our Association has long urged. New state legislation this year provides for increased state funding for constitutionally required representa­tion of indigent criminal defendants, and for better criminal justice practices like the recording of interrogations. In New York City, pilot projects for police officers to use body-worn cameras are underway, low-level misdeeds have been decrimi­nalized into violations, and diversions proposed as an alternative to incarcera­tion (particularly for young people and for non-violent crimes) have increased significantly. The population of our City’s jails has been reduced by 50% in only a few years, with the same period witness­ing a continuing decrease in crime.

As a general historical matter, concern about the plight of prisoners tends to get public and political attention only in rare moments in time. But this is one of those moments and there appear to be more changes to come. Our Association has also advocated earnestly for, and we have ambitions to achieve, reform of a bail system that makes ability to obtain bail often dependent on unregulated decisions by private bail bond enterprises, and that causes large numbers of people who present no serious flight risk to be kept in jail awaiting trial for non-violent crimes for months or years because they cannot afford bail that is often less than $1,000. Prisons’ and jails’ practices in using solitary confinement for discipline are undergoing fundamental change, inmates’ mental health needs are getting attention they have not gotten before, and a City Council Commission led by our State’s former Chief Judge and the Mayor have raced each other to see who would be first to propose formally that the Rik­ers Island jail be closed and replaced with new local jails in each borough. Police re­form is also a matter of intense dialogue, for which the City Bar has provided an important forum in events featuring our City’s Police Commissioner James P. O’Neill and Deputy Commissioner for Legal Matters Lawrence Byrne.

Our Association has made important public contributions to many other developments, large and small, in the past year:

• When President Trump announced the travel ban in late January, eight days before the ABA’s Midyear Meeting, the City Bar became the originating sponsor of a proposed ABA resolution calling on the President to withdraw his execu­tive order. Our report, generated over a few sleepless nights by members of our Immigration & Nationality Law Commit­tee along with members of the ABA’s International Law Section, quickly gained co-sponsors, and nine days later – a tre­mendously fast turnaround time, given the ABA’s usual deliberative processes – the 400,000 member ABA’s House of Delegates overwhelmingly approved our proposed resolution.

• In the diversity area, our Benchmark­ing report on diversity statistics, slowness of progress, and thoughts about how to improve results at New York City’s largest firms received enormous attention in the legal community and national press coverage, and stimulated dialogue within many individual firms, in which our staff frequently participated as visiting con­sultants. After we co-signed a letter with a large collection of affinity bars calling for insertion of a diversity, inclusion, and anti-bias component as part of the 24 hours’ training in New York’s two-year CLE requirements, we found ourselves, at the request of the State CLE Board, taking the lead in presenting the reasons for this proposal and in building state­wide consensus that recently led to the CLE Board’s unanimous recommendation of our proposal to the Administrative Board.

• We were also asked to testify in writ­ing and orally to a panel including Chief Judge Janet DiFiore and the Presiding Judges of the four appellate depart­ments about the rules and practices that should govern administration of so-called “limited scope” representations in court proceedings, in which a lawyer makes an appearance for a client in order to pro­vide representation on a discrete part of the case. It appears likely that new rules, on which we will be invited to comment, will ultimately emerge from this discus­sion.

• We advocated successfully to eliminate New York from its position as the last holdout among the 50 states in legislat­ing special rules for grants of a broad range of state licenses to spouses of mili­tary personnel who are ordered to relocate to our state and want to get new jobs using the skills for which an­other state has given them a license.

• In one particularly satisfying rifle-shot effort, a case involving questions about whether the prevailing party in an arbi­tration could recover the damage award from its adversary’s parent company, our International Commercial Disputes Committee and Arbitration Committee submitted an eight-page amicus brief to the Second Circuit in connection with a motion for reargument or for en banc review, suggesting a reframing of the analysis that differed from what the parties had presented or the court had applied, resulting in an almost unprece­dented Second Circuit decision to modify its earlier decision and embrace the different proposed framing in express reliance on the City Bar’s analysis.

In the last few months, we have also been focused on four particularly important major projects:

1. As many of you know but many of our fellow citizens and even our fellow lawyers don’t, in November of this year New Yorkers will vote on a referendum question presented every twenty years, whether to hold a constitutional conven­tion in 2019. While acknowledging a “flawed” delegate selection process and possible risks to “cherished constitutional protections” that may require vigilance to secure, our Task Force on the Consti­tutional Convention, which has been working on this topic for more than 18 months, just recently issued its report in support of convening a statewide con­vention as the best way to bring about much needed ethics, election, and court reform. In a rare but not unprecedented move, we appended an objection from several of our committees.
2. The financial failure of Puerto Rico has deep resonance for New York, as the home of the second largest concentra­tion of Puerto Ricans aside from the island itself and of many of the financial institutions to which huge unsatisfied obligations are owed. The economic, legal, political, and humanitarian issues presented by this bankruptcy and by proposed approaches to addressing it are gargantuan, and our Task Force on Puerto Rico formed last fall is working to contribute to the intense discussions about how to reconcile competing inter­ests and priorities.
3. We lawyers who participate in court disputes in our legal system and our extremely distinguished judges generally believe we are performing diligently and well, but the clients who experience liti­gation almost uniformly believe that the resolution of their disputes – whatever their size and complexity – takes far too long and costs far too much. We have pulled together a particularly thoughtful working group to ask some hard ques­tions – legal, procedural, and cultural – about how to pursue the next wave of approaches to dispute resolutions that will be faster and less expensive while remaining fair.
4. With the beginning of a new Presi­dential administration, many of our committees followed our long-standing practice of preparing transition memos to identify issues warranting attention and advocate for particular positions. This year was no exception. Those transition memos – about 16 of them – addressed an enormously broad range of issues.

Apart from these subjects, the Associa­tion’s contributions to the marketplace of legal ideas have been broad and substan­tial. Among our 170+ reports generated in the past year, we have addressed issues of securities regulation, tax, land use, coops and condominiums, animal rights, gender and transgender rights, and innumerable other subjects. Internation­ally, we contributed to discussions about a more transparent process for selecting the new Secretary-General of the U.N. (while hosting the outgoing Secretary- General) and spoke out on human rights abuses in places like Turkey, China, Liberia, and Egypt. And we have advo­cated for continued federal funding of civil legal services and continued efforts toward criminal justice reform on the federal level, in the face of expressions of administration policy that present threats in those important areas.

Our policy agenda has been complement­ed with many other contributions to the delivery of legal services, to the health of the legal community, and to debates and other educational and social events. Our City Bar Justice Center expanded its program for veterans and responded to a flood of voluntarism over immigra­tion matters, enjoying funding from a particularly successful gala that honored Bloomberg L.P. and the Proskauer firm. We evaluated a large number of judicial candidates, including Justice Neil Gorsuch and multiple slates of seven candidates for the New York Court of Appeals. We held highly popular all-day Institutes on White Collar, Employment, City Planning, Diversity, Non-Profit and Trademark, and CLE sessions or discussion events on liter­ally hundreds of topics. We sold out the Great Hall and anterooms for a dazzling Barbara Robinson Series inaugural event in which Justices Ruth Bader Ginsburg and Sonia Sotomayor provided sparkling interview answers to questions posed by Charlie Rose. We roasted Judge Jed Ra­koff at our Twelfth Night event, and ex­panded our ‘Bar at the Bar’ social events. We have also reached out to increase the attention we pay to the solo and small firm practitioners who make up about a quarter of our membership, to in-house lawyers, and to committee alumni.

Our members and staff deserve enor­mous appreciation for making all of this extraordinary work possible. We look forward to a year ahead as fascinating and exciting as the previous one.

This column was adapted from John S. Kiernan’s address at the City Bar’s annual meeting in May.

John S. Kiernan is President of the New York City Bar Association.