August 2006

Dear YLS Member:

I am pleased to present to you the August issue of Electronically In Touch. In this issue, you will find:
• Update and Invitation from the Business Law Section
• Standing Out in the Crowd—a monthly column- Servant of the Law
• Report -U.S. Senate approves Cybercrime Convention
• Article Summary-The Probate Exception Nears Death, But Limps Along: The Long and Short of Marshall v. Marshall
• Announcement- Another helpful benefit-YLS Launches Searchable Membership Directory
• Mark your calendar and save the dates! Especially the Big Event: the YLS Fall Meeting, October 20-22, 2006 in Albany, see below for all the details. I hope to see you there.

First, I would like to thank the young lawyers who submitted content for this issue. You perform a valuable and important service by keeping our young lawyer and law student members informed of current topics and recent developments in the law, and by providing career and professional development advice that is useful, practical, and enjoyable to read.

Second, I would like to thank our section chair and former editor, Justina Cintrón Perino, for her visionary leadership and effort in making this publication and other programs available for our benefit and development.

Third, in addition to the quality informative and monthly content that Justina has established, I would like to emphasize cooperation and interaction with the substantive law sections. As members of the NYSBA, we are part of an extraordinarily talented group of lawyers that represent a valuable resource of intellect and experience. As part of our effort to develop and improve our professional skills, I would like to encourage all YLS members to not only offer their own experiences and knowledge, but also attempt to incorporate knowledge accumulated by NYSBA’s many distinguished members.

In Touch is open to many different formats to present the cooperative efforts of our YLS contributors. Perhaps you would like to co-author a piece in a conversational format, describing a particular area of law. Maybe you are particularly impressed with an attorney’s knowledge of an area of law and would to write a summary of an interview with that attorney. Or perhaps you know a judge or district attorney or U.S. Attorney, etc. and your interaction with that person has or could produce something of interest to your collogues.

I encourage you to submit any idea you may have, even if not fully formed, perhaps together we can develop the piece. If you are interested in sharing your ideas, advice, tips, and/or content submissions, please send them to us at yls@nysba.org or to Seth at seth@sethazria.com for inclusion in the newsletter. Electronically In-Touch is a monthly publication. The deadline for submissions is the 10th of the month.

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

Seth M. Azria
Editor

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Update and Invitation from the Business Law Section
by YLS-Business Section liaison Sean C. Southard

I recently had the pleasure of lunching with Sam Abernethy, chair of the Business Law Section. We discussed opportunities to get both the Young Lawyers Section and the Business Law Section more involved with the other. Sam expressed to me his excitement and interest in bringing new members into his section to add their fresh ideas and perspective. He commented that the crop of young lawyers that he has recently communicated with appeared really enthusiastic about the NYSBA and eager to get involved and make their mark. I’m hopeful that our YLS members will seek to get more involved and tap the deep resource that is the Business Law Section.

As one of the largest and most diverse substantive sections of the NYSBA, the Business Law Section includes nine separate committees devoted to different functional areas of business law. A young lawyer would be hard-pressed to find a business law topic or interest falling outside the scope of at least one of the Business Law Section committees. The section offers many CLE opportunities throughout the year, many of which are designed as introductory in nature, such as “Forming and Advising Businesses,” which will be held at different locations throughout the state this fall. Sam mentioned to me that he has also recently worked with Michael Rakower, YLS District Rep Coordinator, in attempting to locate speakers for the upcoming YLS fall meeting in the Albany area.

In addition to the YLS Fall Meeting in Albany, young lawyers should really consider attending the Fall Meeting of the Business Law Section to be held in October in Lenox, Massachusetts. Many interesting CLE presentations are planned, including a very timely topic discussing privacy concerns and identity theft. Perhaps more importantly, young lawyers will be able to network with some of the leading business lawyers in New York, while enjoying golf at a local course and dinner at the famous Norman Rockwell Museum. The Business Law Section utilizes an ambassador program at these types of events that is designed to help make introductions and networking easier for new attendees and young lawyers in particular.

Beyond the CLE and networking events, the Business Law Section is very active and involved in the legislative process. Most recently, the Not-For-Profit Subcommittee prepared proposals for amending the New York Not-For-Profit Corporation Law to update certain provisions and bring the structure of the law in sync with that of the New York BCL, as well as eliminate certain other requirements related to pre-formation approval by certain administrative bodies.

If any YLS members would like to hear more about the Business Law Section and the many interesting opportunities available, please fee free to contact me via email. ssouthard@klestadt.com.

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

Servant of the Law

To be a good chauffeur you must be a good servant. It is not enough to be a good mechanic and know how to drive a car. You must also study your employer’s wishes and carry them out; his interests, and protect them; his peculiarities, and fall in with them; and then, if you are civil, willing, and sober, you will be a good chauffeur.

--From a manual on “Etiquette for Chauffeurs” published in 1906

Your clients (or the firm’s clients) pay a significant amount of money with the understanding that they can rely on you to solve their legal problems. Your job, as a fiduciary and as their advisor, is to help them find the right solution to their problems, even if it’s not the solution that makes you the most money. Furthermore, your clients expect that when they come to you for advice, you’re thinking in the “big picture.” For example, if your client asks you about whether he can terminate an employee, you need to think beyond that initial, limited question, and anticipate the client’s real concerns. The client really wants to know whether it’s likely that the employee would bring an employment discrimination claim, even if there is no merit to that claim. If such a suit is likely, the client wants to know how expensive it would be to defend or to settle the claim. A lawyer’s “added value” is determined, in part, by how well he or she can anticipate clients’ needs. Law is a service industry, and you are a servant.

Young associates can distinguish themselves from the other associates at their firm by how well they anticipate the needs of those whom they serve, namely, more-senior associates, counsel, and partners. Like the chauffeur, it is not enough to be good at the mechanics of being a lawyer; excellent writing, research, and problem-solving skills are necessary, but hardly sufficient, if you want to be a star.

First, pay attention to the work habits of each person for whom you work. When they ask for research, do they like to receive a short memorandum discussing the relevant case law, or would they rather have a stack of highlighted and tabbed cases, so that they can do the final stages of research themselves? When you are writing a memorandum or an agreement, make sure to try to find examples of that person’s work, and model your own writing after those examples. If you tend to work mainly with one or two people, and they tend to be morning people, then you should start your day earlier too.

Second, try to be sensitive to the political position of each person for whom you work. For instance, if one of the people you do a lot of work with is an eighth-year associate who is up for partner, you can bet that she will be especially concerned about making a good impression on her superiors. Try to help her by taking over all of the lower-level, administrative work on the case, so that she can shine on those aspects that her superiors will be noticing. When she makes partner, she’ll be one of your greatest advocates.
Third, accept the fact that some of your superiors’ requests will seem unreasonable, unfair, arbitrary, annoying, and ridiculous. Vent about it to your mother, or to your husband, or to your pet; basically, make sure whoever you vent to is someone with whom your venting will safely die, and not be passed on to eager ears. Then, unless they’re requesting that you do something unethical or illegal, move on, suck it up, and do what you’re told. As I said before, law is a service industry, and it’s our job to do what we’re told, even if that means time-consuming, boring, scut work that you think is too good for your fancy, $150,000.00 education. As long as you’re in a service industry like the law, you’re going to have to occasionally give in to the unreasonable whims of others.

And, as always, be civil, willing, and sober.

U.S. Senate approves Cybercrime Convention
by Odia Kagan**

On August 3, 2006 the U.S. Senate ratified the Council of Europe Convention on Cybercrime. The convention, which came into force in July 2004, was enacted in order to pursue a common criminal policy that would protect society from cybercrime. The convention attempts to do so by providing a list of crimes, conducted using or targeting a computer or the internet, for which each signatory country must adopt in its own legislation. Such offenses include: hacking and disruption of the operation of a computer, computer facilitated fraud, child pornography, and intellectual property violations.

The convention intends to promote international enforcement of the listed crimes by requiring each country to cooperate and assist the other signatory countries’ law enforcement authorities in their investigation and prosecution of the crimes. This cooperation may be carried out through the conduct of searches and seizures of emails and computer records, the requirement of companies (e.g. telecom companies, internet service providers) to maintain records and logs of their customers’ activities etc. The convention requires the signatory countries to pass laws permitting the said actions in order to enable their usage to this end.

Signed by 43 countries, the U.S. is only the 16th country to ratify all of the Convention's provisions. Proponents of the Convention believe that it is a good method for ensuring an adequate minimal standard in the battle against cybercrime. In the U.S., where specific legislation exists in most if not all the areas discussed in the convention, it is unlikely that the ratification of the convention would require any new legislation or amendment of laws. However, supporters believe that it would assist in the war against terrorism as by reinforcing the cooperation of U.S. law enforcement authorities with their counterparts worldwide and in the acquisition of electronic evidence.

Opponents of the Convention protest mostly about the lack of “dual criminality.” The international cooperation required by the convention includes, as aforesaid, electronic searches and seizures; electronic surveillance "in real time" and the requirement of U.S. businesses to retain data logs under an "expedited preservation" order. These actions would be carried out per the request of another country under its laws to assist the prosecution of individual for actions even if such actions are perfectly legal in the U.S. The “dual criminality” issue would be especially worrisome if the request is made by a country with poor human rights protection record.

The Senate did not approve a separate Protocol of the Convention which would have required the U.S. to establish as criminal offences under U.S. law actions included,, insulting publicly through a computer system, persons due to their race, color, descent or national or ethnic origin, as well as religion. Such actions were deemed by the Department of Justice to be protected by the First Amendment and therefore not criminal.

The Probate Exception Nears Death, But Limps Along: The Long and Short of Marshall v. Marshall
by Justin S. DuClos, Esq. ***

On May 1, 2006, the United States Supreme Court clarified and set straight the probate exception to federal jurisdiction in Marshall v. Marshall, which until then was running on as an historical anomaly and an unsatisfactorily explained product of blind precedent. 126 S.Ct. 1735 (2006). Justice Ginsburg, writing for the Court, shattered the Ninth Circuit Court of Appeals’ broadly constructed form of the exception by cutting it loose from recondite English analogs dating to way back when and narrowing it to what could have been considered obvious all along.

The probate exception is a judicial doctrine linked to the language of the Judiciary Act of 1789. It strips federal courts of subject matter jurisdiction over those matters that concern the probate of a decedent’s last will and testament and the administration of a decedent’s estate. The theory has been that because the English Courts of Chancery were not vested with the authority to adjudicate these matters, and the jurisdictional grant afforded by the Judiciary Act of 1789 was premised on the jurisdiction of the English Courts of Chancery, the Judiciary Act of 1789 could not have extended jurisdiction over such matters. The doctrine has easily persisted because the belief has always been that such matters are better left to local courts, even if otherwise within the purview of federal jurisdiction.

What remains of the probate exception after Marshall is a respect for the probate and estate administration process itself, to the extent that the process of settling an estate is ongoing and wholly contained within state jurisdictional confines. Primarily, in the negative sense, and quite limitedly, that means that the federal courts will not oversee the administration of an estate, and the immediate dispensation of any res taken into the possession of a state court under the auspices of estate administration will not be dictated by the federal courts.

The ultimate effect Marshall will have on federal jurisdiction will likely be slight because the decision does not further delimit the parameters of the exception; Marshall instead rids the exception of the growing weight brought on by the kind of cautious jurisdictional grant exercised by the Ninth Circuit. Most importantly, an assertion of federal jurisdiction will not be improper solely because the claim arises during a probate process or because it relates to an estate undergoing administration.

Procedural History
The procedural history is the underlying subject of all the talk. The cases bounced from a probate court in Texas (“Texas court”), to a United States Bankruptcy Court (“bankruptcy court”) and to a federal district court (“district court”), before riding the famous funicular up the chain of appeals.

The first case brought was filed in the Texas court and it pertained solely to the probate of the will of J. Howard Marshall II (“Howard”) and the administration of his estate. With that case underway, Vickie Lynn Marshall (“Vickie”), the infamous widow of Howard, filed for bankruptcy in the bankruptcy court. E. Pierce Marshall (“Pierce”), Howard’s son, filed a notice of claim against Vickie for defamation, and Vickie counterclaimed for tortious interference with her expected inheritance from Howard. The bankruptcy court dismissed Pierce’s claim and granted Vickie’s. Vickie thus withdrew her claims in the Texas court. Of course, the Texas court proceedings were ongoing, and they resulted in a jury verdict favorable to Pierce on all fronts. Most importantly, the jury found that Howard’s final estate plan was valid in all its various parts despite Vickie’s challenges to its legitimacy. The Texas court also asserted for itself exclusive and dominant jurisdiction over all the issues raised by both parties.

With all that said and done, Pierce took the bankruptcy ruling up on appeal to the district court, arguing preclusion and the probate exception. The district court ruled in favor of Vickie, though for only a fifth of what the bankruptcy court awarded her. Pierce appealed to the Ninth Circuit and Vickie cross appealed. The Ninth Circuit ruled that the district court and bankruptcy proceedings were subject to the probate exception. The Ninth Circuit vacated the district court opinion and remanded with instructions.

The Probate Exception, Now
On appeal, the Supreme Court reined in the probate exception. The Court held that the Ninth Circuit went wrong in two major ways by finding that the Marshall case fell within the probate exception. First, the Ninth Circuit gave too much weight to the Texas court’s assertion of exclusive and dominant jurisdiction over the matter. Second, the Ninth Circuit interpreted the probate exception too broadly by extending it to all things that might literally, however slightly or in whatever way, “interfere” with probate proceedings.

The Court in Marshall principally relied on Markham v. Allen, 326 U.S. 490 (1946), but also gave some attention to Ankenbrandt v. Richards, 504 U.S. 689 (1992). Markham, like Marshall, involved the probate exception at work against a federal statutory grant of jurisdiction. The Supreme Court made two pronouncements in Markham that formed the basis of its opinion in Marshall, and Justice Ginsburg quoted those passages in her opinion to clarify the discrepancies they caused within the jurisprudence treating the probate exception.

What we take away from Marshall is that probate oversight and the final dispensation of estate assets will take place under the authority of state probate courts. However, all claims that otherwise properly lie within the federal jurisdiction will still there properly lie. Accordingly, the Ninth Circuit ruling was overturned.

The Irrelevance of Self-Proclaimed Exclusivity
As for the relevance of the Texas court’s pronouncement of its own dominant and exclusive jurisdiction over this matter, Justice Ginsburg made short work of such unfounded audacity. Though the Court determined that Texas courts had recognized the tort Vickie sued on, and that under the Erie principle the federal courts were to apply Texas’ rendition of that right, the Court further noted that it has long recognized that a State cannot create a cause of action and at the same time destroy the right to sue on it. Again, the Ninth Circuit was wrong to broadly state that a state court’s holding regarding its own exclusive jurisdiction over a probate affair is binding on federal courts that may also have jurisdiction.

Conclusion
Although dispositive issues were still left open on remand, at least we now know that the federal courts can safely make those determinations because they will not concern the actual administration or dispensation of an estate. For a more complete treatment of this case, refer to the August issue of the New York State Bar Association’s Perspective publication.

YLS Launches Searchable Membership Directory

This month, the YLS launched a searchable Directory of its members. The Directory can be accessed by visiting the YLS Web page, and is an exclusive, members only benefit. The Directory allows you to search for other YLS members by name, e-mail, area of practice, judicial district or city. Type in or select the information you wish to search, click the Search button, and a page will display the information you requested.

To use the Directory, you will need to be logged in to the NYSBA Web site with your username and password. If you need assistance signing in to the site, please visit http://www.nysba.org/pwhelp.

PLEASE NOTE: All members of the Section are automatically included in the Directory. If you wish to opt-out of being listed, please visit MyNYSBA and choose “Personal Contact Profile” on the left-hand navigation bar. After you have clicked on the “Personal Contact Profile,” choose the “Opt-in Info” tab at the top. Uncheck the box under Section Directories to remove your information from the Directory. You may also correct any information contained in your Directory listing by updating the “Contact Info,” “Attorney Info,” or “Practice Area Info” tabs as well.

Enter the directory now!

Mark Your Calendars and Save the Dates!

YLS Fall Meeting, October 20-22, 2006

Please join us for our Fall meeting in Albany, October 20-22, 2006. With continuing legal education programs covering a diverse array of practice areas and career development topics and opportunities for networking and socializing with peers, colleagues, families, and friends, it is our hope that the weekend will attract one of the largest gatherings of newly-admitted, young lawyers, and law students to a meeting of the Section.

The weekend will open late Friday afternoon with an ethics presentation, followed by a welcome reception and dinner for those members arriving early. The meeting will continue on Saturday with a day-long program of continuing legal education, including three (3) general sessions and thirteen (13) concurrent sessions. We will be offering programs on ethics, civil/criminal trial practice and trial advocacy, evidence, criminal law, business and corporate law, real property, land use planning and zoning, municipal law, environmental law, family and matrimonial law, intellectual property, international law, estate practice, alternative dispute resolution, and career and professional development.

Social events are being planned for members, families, friends, and guest, including a welcome reception and dinner on Friday evening, a Saturday morning tour of historic Albany and a special Saturday evening private tour, reception, and dinner at the Albany Institute of History and Art.

The weekend will conclude on Sunday with committee business meetings.

There is something for everyone! We hope to see you, your families, and guests in the Fall! Click here for program and registration information.

Friday, September 15, 2006 10 a.m. – 4 p.m.
NYSBA, Lawyer Assistance Program, Peer Assistance Volunteer Training, Approved for 5.0 MCLE Credits

This training is for attorneys, judges and law students who are interested in providing peer support to their colleagues in law who are struggling with addiction, depression, mental illness, or debilitating stress. Expert presentations will be given on gambling, depression & suicide, peer support skills, mental health issues and addition. Special note, this can be a train-the-trainer opportunity for those interested in bringing this information to attorneys in their home regions.

This program with be held at The New York State Bar Association 1 Elk Street Albany, NY at the New York State Bar Association, One Elk Street, Albany, NY.

There is a $25 registration fee and a special hotel rate for participants at Hampton Inn and Suites Albany Downtown, 25 Chapel Street, Albany, NY (518) 432-7000. $129 (includes breakfast) Reservation deadline – Sept. 8th.

Please contact:
Patricia Spataro
NYSBA LAP Director
1800.255.0569
pspataro@nysba.org

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*Christina H. Bost Seaton is a second year associate in the litigation and labor & employment practice groups at Troutman Sanders LLP in Manhattan, where she is constantly trying to “play rainmaker.”

** Odia Kagan is a partner in the Tel-Aviv, Israel law firm Shavit Bar-On Gal-On Tzin Nov Yagur and is the Head of its IT and Internet Law Department. Odia is an attorney admitted to practice in New York, Israel, New South Wales Australia; and in England and Wales and may be reached at okagan@sbilaw.com.

***Mr. DuClos focuses his practice on civil litigation and federal appeals at the New Orleans firm of Montgomery Barnett Brown Read Hammond & Mintz LLP. Mr. DuClos is licensed to practice in Connecticut, Massachusetts, New York, and Rhode Island, and is currently a candidate for an LLM in Admiralty Law and a Certificate of Specialization in Environmental Law from Tulane University School of Law.

This column is not intended to be construed as legal advice that can be relied on or considered authoritative in any particular case nor should the reader infer any such intent from any particular phrase or construction employed by the style used to present the material.