April 2006

Dear YLS Member:

I am pleased to present to you the April issue of Electronically In-Touch.  In this issue, you will find:

Again, thank you to the many young lawyers who submitted content for this issue.  We continue to be impressed by the quality of your submissions, and appreciate the time, effort, and energy that you put into your articles-especially when your time is limited and often not your own.  A special thank you to our young lawyer and law student members residing or practicing out-of-state and over seas; we welcome and encourage your contributions to the newsletter and participation in the Section.  You are a valued and important addition to the YLS.

For those of you interested in sharing your ideas, advice, tips, and/or content submissions, please send them to us at yls@nysba.org  for inclusion in the newsletter.  Electronically In-Touch is a monthly publication.  The deadline for submissions is the 10^th of the month.  

We hope that you enjoy the April issue and look forward to staying In-Touch...

Justina Cintrón Perino
Chairperson-Elect

Domestic Partners Have a Right to Make Decisions over Burial
By Heena Shaikh1

Recently, Governor George Pataki signed a bill that entitles domestic partners, both same-sex and opposite-sex couples, the ability to make decisions about their partner’s remains.  Newly amended Public Health Law, Section 4201 grants priority to a domestic partner, just like a spouse, ahead of surviving child or parent in deciding who gets control over decisions about burial.  This is the first time in state law that same–sex relationships have been given priority over a blood relative. 

Prior to the amendment, family members were given exclusive control of the body with no regard to the long term partner or caregiver.  In many situations, the family members would alienate the partner or caregiver, who in most likelihood would know the wishes of the deceased partner.  Now, with the aid of the new law, domestic partners are given an opportunity to control the disposition of the decedent’s remains. 

The new amended law creates a proxy form to memorialize the wishes of the partner.  The written document takes the highest precedence in determining disposition of bodily remains.  The “Death Care Proxy” is a simple proxy form authorizing the appointment of an agent, and has space for special directions. It must be executed in the presence of two witnesses.  In the absence of a written instrument, Section 4201 creates a priority list of those individuals who have the right to control the disposition of the decedent’s remains.  The list gives equal rights to spouses and domestic partners above blood relationships like adult children, parents, and adult siblings. 

The law provides three different means to establish domestic partnership status:

1)      For same-sex couples who are able to register their partnership with a government entity, the registration is sufficient proof; or

2)      If a partner is formally recognized as a beneficiary or covered person under the other person’s employment benefits or health insurance; or

3)      If a partner is at least eighteen years of age and dependent or mutually interdependent on the other person for support and indicates a mutual intent to be a domestic partner, then upon being able to provide documentation of such joint residency, the claim of partnership may be established.  

Although this law is quite limited, it is an important step to the full recognition of domestic partnerships in New York. 

Health Care Proxy Significance
By Crystal Doolity, Esq.2

In the weeks following Terri Schiavo’s death, I was hopeful that requests to execute Health Care Proxies would flood my calendar.  Yet more than a year later, I continue to meet people who recognize the importance of having such a directive in place, but are not motivated to follow through and complete it.

As attorneys, we interact with our clients on a professional level, however, most of them – regardless of their educational background or financial status – seek our personal experience and approval before making a final decision about what action to take.  I would strongly encourage all of you to get your plans in order and then advise your clients to do the same.

Completing a Health Care Proxy is not difficult or cost prohibitive.  It does have some requirements to follow (i.e., the person executing it must be competent, witnessed by two people, etc.), but the greatest hindrance seems to be simply admitting that there may be a time when we are not in control in our lives and have to relinquish decision-making authority to another individual.  An “agent” by definition is someone who has authority to make decisions for you, as if made by you.  Furthermore, there are a great number of people who do not feel they have anyone to name as their agent.  This is a significant and understandable concern.

When naming a health care agent, you should consider, or advise your client as the case may be, who is the person that will most effectively communicate and uphold your wishes.  That person is not necessarily a spouse, child, or parent.  Again, remember Terri Schiavo or any other case you have read in recent years where family members were at odds over what medical treatment should be ordered or withheld.

Once an agent (and at least one alternate for good planning) is named, you should discuss your wishes with him or her until you are confident that they understand what medical treatment you would or would not want in various situations.  General discussions are probably best since we cannot anticipate every circumstance which might render us temporarily or permanently incapacitated.  It is also a good practice to give copies (regular, not certified, copies are sufficient) to the agent, alternate agents, and your doctors.

If you do not prepare advance directives at your office, there are examples on the NYSBA website, but I think it is best to have an attorney prepare a personalized document.  My office customizes the Health Care Proxy to include a HIPAA authorization for easier access to medical records and Living Will language as some guidance for common medical treatments.

This article is intended to encourage all of you, and your clients, to execute a Health Care Proxy or take a few extra steps if the concerns mentioned here were not previously considered.  For additional information, feel free to send me questions at cdoolity@cswlawfirm.com  or consult New York Public Health Law Article 29-C.

Not-for-Profit Boards – Never Jump on Board without Thorough Due Diligence
By Rosemary O. Nwawka, Esq.3

More than ever before, members of the legal profession are being solicited for membership to the board of various charitable organizations in Central New York and beyond. From the charity’s perspective, the advantages of having a lawyer on the board include elevation of the organization’s reputation, fund raising potential, etc. More often than not, young lawyers are oblivious of the implications of sitting on a board, and might accept the position without conducting any form of research into the background and current state of affairs of the organization.

From the lawyer’s perspective, a board membership would add some color to one’s professional profile, provide an opportunity to make new contacts as well as offer other advantages. It is very tempting for would be novice board members to focus on the advantages while overlooking the responsibilities and, sometimes, liabilities to the organization associated with such a position. Board membership also comes at a cost of personal time investment to attend meetings and fully participate in various activities. 

Some meetings are held right in the middle of the work day and have been known to last anywhere from one hour to an hour and a half. Other responsibilities include: review of various materials such as meeting agendas prior to the meeting, meeting minutes, financial report, and annual reports.   In addition to these responsibilities, a board member would be expected to be involved in subcommittee activities, risk management, and strategic planning for the not-for-profit body. The most important factor to bear in mind is that board members owe a duty of care, loyalty, and obedience to the organization. Mismanagement of the organization’s assets would attract penalties because fiduciary duty goes hand in hand with accountability. 

It, therefore, becomes very critical and worthwhile for any one considering joining a not-for-profit board, especially young lawyers who have no prior experience in this area, to conduct the necessary due diligence before accepting the position. Start by reading the organization’s By-Laws/Charter. Next, ask and obtain answers to the following questions before taking that leap: do I have a conflict of interest with this organization; is there adequate Directors/Officers liability insurance in place; are there any pending law suits against the organization or its assets; is the organization in compliance with all registration and reporting laws as well as other applicable statutes and IRS guidelines; is it still in good standing with respect to its tax exempt status; what is its overall financial shape; do financial reports provide any tell tale signs of embezzlement, etc.; is there an independent auditor; is the charity’s mission clearly defined; are the resources and policies geared towards promotion and realization of this goal or instead to some unauthorized activity; is this mission something that you truly care about; what sort of contributions or value can you add by joining the board; who are the other members of the board -   if possible, speak to a few of them personally to get a general feeling of what is going on and whether you are likely to work harmoniously with such individuals; what created the vacancy that you are being asked to fill - if the position became vacant in the middle of a term, if possible, speak to your predecessor directly to find out why they left; are there any fund raising obligations/expectations to be fulfilled; and will I be required to contribute funds, etc.

Obviously these are tough questions, but it’s far better to know what one is getting into well in advance than to blindly jump on board only to have regrets later.   There a host of other questions to ask and the following website for the Office of the New York State Attorney General is a good resource: www.oag.state.ny.us/charities/charities.html. This website also has links to numerous other publications and websites providing useful information on not-for-profit bodies.

Standing Out in the Crowd—a monthly column
By Christina H. Bost Seaton, Esq.4

SMART Goals

Lawyers don’t often think of themselves as managers.  We think of ourselves as academics, as problem-solvers, and sometimes as business men (and women.)  We spend time at CLEs, perfecting our legal skills, and some of us spend time learning skills like networking and business development.  I’ve never, however, heard an associate saying that they want to learn how to be a better manager.  After all, isn’t management what partners (and HR) are for?

I’d like to suggest that we all might benefit from taking an interest in management.  Not because we need to learn better how to interact with our secretaries and other staff members (though we could certainly benefit from that as well) but because we manage ourselves every day, with hardly a thought as to how we could improve that process.  By improving your management skills, you will be better able to achieve your goals, and to do so more efficiently. 

Management theory has several tools that can usefully be applied in the management of Project: You.  One such tool is the use of SMART Goals.  This tool reminds its users that useful goals have five traits in common—they are (1) Specific; (2) Measurable; (3) Attainable; (4) Relevant; and (5) Timely, and thus, SMART. 

Keeping these traits in mind, it is clear that many of us have been making goals that really aren’t very SMART.   For instance, you may well want to become partner at your firm, but “Making Partner” is not a SMART goal for a first or second year attorney.   This goal is not very specific (A partner in which firm? In which department?  With which specialization?), it may not be attainable (and certainly isn’t for several years), and it isn’t very timely.  This goal doesn’t allow you to measure what you’re doing now against your goal, in order to judge your progress towards achieving that goal.  More often than not, this kind of goal makes associates throw up their hands in frustration—how am I supposed to really achieve this goal anyway?!

This does not mean that you can’t set goals towards becoming a partner—it just means that you need to learn to break this ultimate goal into a series of SMART goals.   An associate who wants to become partner would set yearly goals as to the kinds of knowledge they would like to acquire that year, and the amounts and types of networking in which they would like to participate in order to improve their business development skills.   In addition, a SMART associate would write down these goals, and revisit them over the course of the year in order to evaluate their progress and see if they needed to revise their plans for achieving that goal. 

Thus, a SMART goal for a securities litigator that wanted to become partner and who knew a lot of accountants, who he hoped would one day be clients, might be: “Write an article on new developments in accountant’s liability under the securities laws, and have the article published in a trade publication.”   This goal is Specific—the attorney knows exactly what kind of article he wants to write, who the target audience is for the article, and in what kind of publication the article will be published.   The goal is also Measurable—the attorney can easily tell how close he is towards finishing the article and getting it published.  The goal is also Attainable—all those papers we had to write in school have taught us that we can write an article.  The goal is Relevant towards his goal of becoming a securities litigation partner because it will (a) improve his substantive knowledge of accountant’s liability; (b) get his name out and help him eventually bring in business.  Finally, the goal is Timely, because the article will be dealing with new developments in the area of accountant’s liability.

By using SMART goals, you will be able to work towards your ultimate goals in a more effective, and more efficient, manner.   Your improved management of You will not only lead to a more effective and efficient You, however—it will also lead to a happier You.   And a happy employee is the goal of every manager.

Case Law Update
By Matthew S. Lerner,Esq.5

Recent Grants for Leave to Appeal to the New York Court of Appeals

This month's summaries cover a spectrum of civil law issues that the New York Court of Appeals will address in the near future. The Court recently granted motions for leave to appeal to the Court in two appeals in the Appellate Division, Third Department.  The first appeal, Matter of Reckless v. New York State Comm'n on Quality of Care for the Mentally Disabled, 17 A.D.3d 941 (3d Dept 2005), concerns the power of the New York State Commission on Quality of Care for the Mentally Disabled to compel the production of financial records under the Mental Hygiene Law.  The petitioners own and operate five adult homes. Through a series of transactions, ownership of the homes was transferred to five separately incorporated realty holding companies, each of which the petitioners owned. The properties were then leased back to the adult homes and, between 1999 and 2001, were refinanced by petitioners through their realty holding companies.  This refinancing caused an extremely large increase of rents for these homes.

The Commission discovered this "exponential" rent increase during a review of these and other adult homes in which 25% or more of its residents either have or are receiving mental health services from an outside provider.   It requested access to each facility's mortgage and closing documents; however, the petitioners refused, contending that the Commission did not possess the requisite authority to compel disclosure of financial documents that independent, separately incorporated realty holding companies held.    The petitioner commenced a proceeding to quash the separate subpoenas that the Commission issued to each holding company for the applicable documents. 

The Third Department agreed with the trial court that the Commission did not have the power under the Mental Hygiene Law to compel the production of the documents.   The Court concluded: "There is no authority permitting [the Commission] to subpoena the financial records of third parties who lease the land and buildings to the adult homes. The fact that [the] petitioners own both the individual holding companies and the adult homes will not expand this authority."   The Court of Appeals will now have the opportunity to address the Commission's authority regarding compelling documents from these types of third parties.

The second Third Department appeal, Northeast Wine Dev., LLC v. Service-Universal Distrib., 23 A.D.3d 890 (3d Dep't 2005), concerns a retail wine and liquor store's action against a wholesale distributor of wine and liquor.  The plaintiff/store alleged that the distributor refused to sell the plaintiff/store certain brands of wine and liquor at prices listed in the distributor's mandatory filings with the state liquor authority.  The Alcoholic Beverage Control Law mandates, among other things, that a wholesaler file with the state liquor authority schedules of the bottle and case prices charged to retailers.

Among other things, the Third Department upheld the trial court's interpretation of a bulletin from the predecessor of the state liquor authority concerning whether a wholesaler is allowed to restrict its individual sales to retailers in accordance with what they regard to be the retailers' needs and to allocate specially-packaged products where the supply is limited.  The Third Department concluded that the trial court reasonably viewed the agency's bulletin as allowing the distributor to restrict their individual sales. 

The last appeal concerns the Appellate Division, First Department's grant of a motion for leave to appeal to the Court of Appeals in Laratro v. City of New York, 25 A.D.3d 145 (1st Dep't 2005).  Laratro concerns the application of the "special relationship" exception to the general rule that, as a matter of policy, municipalities will not be held liable for negligence in performing governmental functions.  The rule is not applied where a municipality voluntarily undertakes to act on behalf of a particular citizen who detrimentally relies on an illusory promise of protection because in such cases the municipality has by its conduct determined how its resources are to be allocated with respect to that circumstance and has thereby created a "special relationship" with the individual seeking protection.  The elements of the "special relationship" required for a municipality to be held liable for its negligent failure in the performance of services are: (1) an assumption by the municipality, through promises or actions of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking.  This appeal concerns the applicability of the third and forth elements.

In Laratro, the plaintiff Richard Laratro suffered a stroke at work and his coworker/friend called 911 and told the police communication technician about Laratro's symptoms.  The plaintiffs alleged that the coworker/friend relied upon the assurances that an ambulance would be sent "as soon as possible," and decided to wait rather than transport Laratro herself to the hospital.  An ambulance arrived over an hour after the coworker/friend called 911. 

The First Department did not rule out that a friend could satisfy the "direct contact" element of the special relationship analysis.  It observed: "In the face of the allegations, we cannot categorically state, as a matter of law, that [the coworker/friend's] relationship with Laratro was not close enough to qualify her contact with emergency services on his behalf as direct contact by plaintiff.  The First Department also determined that an issue of fact existed as to whether the coworker/friend, acting in Laratro's interest and on his behalf, was lulled into a sense of security that the paramedics would be there shortly to help, instead of taking affirmative steps herself to get him help.

Justice Marlow dissented, observing that any expansion of the narrow "special relationship" exception should be left to the Court of Appeals or the Legislature.  He warned that the Majority's decision significantly increased liability exposure to municipalities that will ensue from enlarging the class of persons who may claim a "special relationship" with a municipality. The Court of Appeals will soon determine whether the class of persons may include, under certain circumstances, a close friend or coworker.  

Qualified Lawyers Transfer Test Enables Lawyers to Practice in Ireland
By Siobhán Cummiskey,LL.B., LL.M.6

Overview of QLTT

The Qualified Lawyers Transfer Test (QLTT) is a conversion Test run by the Law Society of Ireland, which enables lawyers qualified in certain countries outside the Republic of Ireland, to qualify as solicitors in this jurisdiction. 

There are two sittings of the Test each year – usually June and November.  The Test is held at the Law Society of Ireland’s Headquarters, Blackhall Place, Dublin 7.

The test comprises the following examinations:  Constitutional Law & Company Law or Constitutional Law & Criminal Law, Contract & Tort, Land Law & Conveyancing, Professional Conduct, Probate & Tax, Solicitors’ Accounts and European Union Law.

Faculty of Law, Griffith College Dublin

The Professional Law School was established in 1998 and is the largest provider of professional legal training in the country. Since its inception, close to 4,000 students have undertaken courses in the School in preparation for the entrance examinations of the Incorporated Law Society of Ireland and the Honourable Society of King's Inns. Preparatory courses are also provided for the New York Bar examinations. 2005 marked the commencement of Ireland’s first Qualified Lawyers Transfer Test at The Professional Law School.

The School delivers the following courses:

• Incorporated Law Society of Ireland’s Final Examination (Part 1).
• Honourable Society of King’s Inns Entrance Examinations. 
• Incorporated Law Society of Ireland’s Qualified Lawyers Transfer Test.
• The New York Bar Review.
• The Californian Bar Review.
• Part-time Certificate and Diploma Courses in Professional Legal Studies (in conjunction with the Irish Institute of Legal Executives.
• Corporate Legal Training and Continuing Professional Development.

QLTT Preparatory Course
Timetable*

Courses run from March - May and August - November each year.

Lectures are held on Wednesday to Friday evenings (6 p.m. – 10:15 p.m.) and all day Saturday (9 a.m. to 6 p.m.).

* Please note that the timetable may be subject to change.

Distance Learning Programme

Our distance-learning programme has been developed in light of the needs of those students who are not in a position to attend lectures in Dublin. Each distance-learning student receives the full complement of study materials at the beginning of the course and is assigned a Course Tutor who will correct the student’s homework on a weekly basis. Direct telephone/e-mail tutor support is also provided. Homework may be submitted by post, or e-mail: proflaw@gcd.ie. Distance-learning students are invited to attend lectures on campus in the first (orientation) and final (exam review) weeks of the course. In addition, distance learners may attend our Memory Improvement, Study Skills & Examination Technique classes.

The YLS Spotlight

YLS member Vilda Vera Mayuga has signed on to lead a team of nine runners in the first-ever Avon Foundation Need for Speed Relay Against Domestic Violence   on Sunday, June 11 in Westchester County, NY. The team, dubbed Lickety Splits, will be joining forces with the event’s Honorary Team Captain, Joe Torre, Manager for the New York Yankees, to raise funds and awareness to help end domestic violence. View complete details (PDF).

CALLING ALL LAW STUDENTS…;

In an effort to be responsive to the needs of our law student members, the YLS is inviting you, our law student members, to lend your ideas, advice, input, and guidance on ways we can improve Electronically In-Touch to meet your needs.  We are not only looking for your content suggestions, we invite you to participate in any way that you feel would be meaningful to you, your colleagues, and your peers in law schools around the state.  You can do this by submitting an article, review, summary, update, internship/employment opportunity, question, comment, noteworthy achievement, etc.  The YLS is your Section and we are here to help support you as you transition from law school to practice.   

WE NEED YOUR INPUT…What are Your Favorite Links and Websites?

The YLS is in the process of updating its webpage at www.nysba.org.  As part of this update, we would like to include websites or links of interest to other young lawyers.   We want to know your favorite links and websites.  Your favorites can include: practice links, research links, academic links, interesting legal bogs, professional development sites, legal news sites, career/employment sites, etc.   We want to know where you spend your time on the Net and what you find to be most helpful in your day-to-day practice and/or studies. 

Since we would like to include these links and sites on the YLS webpage, please forward only those links that would not be considered offensive or inappropriate. Send to yls@nysba.org.