july/august 2013 new york county lawyer

N E W Y O R K

COUNTY LAWYERI N S I D E

Negotiation.....................2��

Speaking Tip ..................2

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Met the New Officers andDirectors.........................3

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Meet the New FoundationBoard Members .............6

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New NYCLA DuesStructure.........................9

Book Review.........................................6

CLE Institute.........................................4

Criminal Courts Manual .....................13

Electronic Research Center CLEs ......10

Ethics Hotline......................................11

Health Insurance ................................12

High School Essay Contest Winning

Submission..........................................13

Library Notes ......................................10

Long-Term Care Myths ......................12

Meet the New Foundation Board

Members ...............................................6

Message from Barbara Moses, NYCLA

President................................................3

Message from Lewis S. Tesser,

President of the NYCLA Foundation ...6

Negotiation............................................2

New NYCLA Dues Structure ...............9

New Officers and Directors ..................3

Recent Events .......................................8

Recidivism.....................................Cover

Speaking Tip .........................................2

What’s Tweeting .................................11

July/August 2013 Visit us at www.nycla.org Volume 7 / Number 24

Federal Re-entry Programs in the Southern and Eastern DistrictCourts of New York: Creative Approaches to Offender RecidivismBy Laury A. Betha, Esq.

In 2002, in an effort to reducerecidivism rates, the EasternDistrict of New York launchedan experimental program involv-ing supervised re-integration ofreleased federal offenders intothe community. Currently,Judges Dora Irizarry and JohnGleeson, and Magistrate JudgeSteven Gold supervise these pro-grams.

In 2012, the Southern District ofNew York initiated a similar pro-gram, supervised by DistrictJudge Harold Baer, a formerpresident of NYCLA, andMagistrate Judge Harold Pittman. Boththe SDNY and EDNY programs haveachieved impressive results, but arethreatened by recent cuts to the budget ofthe federal judiciary.

The underlying premise of the re-entryprograms is collaboration – a teamapproach to assisting released offendersto reintegrate into their communities andsociety at large. The re-entry programsinvolve intensive supervision, over ashort period of time, that address thewhole person rather than just the crime.The main goal is keeping the offenderout of any further criminal trouble.1

Eastern District of New York (EDNY)STAR ProgramSince 2005, EDNY Judge Dora Irizarryhas run a supervised reentry program fordrug offenders. The drug court programbegan in 2002 under the late JudgeCharles P. Sifton. In that same year, theprogram was re-named STAR(Supervision Treatment and Re-entry).STAR is designed to provide “the kind ofstructure, intensive supervision, account-ability, drug and mental health treatment,educational, vocational, and employmentassistance that will give addicted offend-ers a better chance of leading a drug-freeand law-abiding life than they would oth-erwise.”2

While the evaluation by the FederalJudicial Center has not been made pub-lic, the early findings are that the recidi-vism rate is 10 percent for STAR partici-pants versus 15 percent for those not inthe program. Also, Judge Irizarry provid-ed statistics that suggest that as much asa half-million dollars in savings mayresult from the use of federal drug courtprograms instead of incarceration.

Participants in STAR are offenderswhose “drug use led to criminal activity”says supervising probation officer NellaYalenovic. The participants have eithercompleted their sentences, and are onsupervised release or have been admittedto the program as an alternative to incar-ceration. Judge Irizarry, ProbationOfficers Nella Yalenovic, ChristopherWodzinski, and Yolanda Diaz, federaldefenders, Lem Kamdang, Esq, andMildred Whalen, Esq, and staff fromdrug treatment programs meet with theoffenders in the courtroom the firstTuesday of every month for the purposesof progress review. The key componentsof the program are education, obtaining ajob, drug treatment, cognitive behavioraltherapy, and community service. Theidea behind the program is to decreaserecidivism. Judge Irizarry reported thatSTAR partners with Daytop Village “in asignificant way” for the purposes of drugtreatment programs. Daytop Village has“accommodated” the STAR participantsby having Saturday meetings that do notinterfere with participants’ work sched-ules. The key to success of the STARprogram, which is now unfunded, is thepartnerships with community programswhich are supported by Medicaid andother public insurance programs. Othercommunity based drug treatment pro-grams include the Hope Program, and820 River Street. According to Mr.Wodzinski, the 820 River Street programis based on one similarly named in“Upstate New York.”

The incentive for participation is thatsuccessful participants can get as muchas four years removed from their super-vised release. Ms. Yalenovic reportedthat successful participants completedrug treatment, are involved in an educa-tional component such as getting their

GEDs, and do community serv-ice until employed. It takesbetween one and two years tocomplete the STAR program, butparticipants can remain in theprogram for longer periods oftime.

To graduate, the participantsmust have 12 consecutivemonths of sobriety. The Chief ofFederal Probation for the EDNY,Eileen Kelly, states “the goal ofthe program is abstinence.” “Aslong as the participants are will-ing to remain in the programthen they can stay.” It may takelonger than two years to get 12months of sobriety. When there

is a relapse, the offenders are sanctionedwith graduated consequences such asmore meetings with their probation offi-cers, home confinement, or for severeinfractions, incarceration. Remaining inthe program or termination are judicialdecisions not subject to appellate review.(see infra, Statement of Reasons forAccepting Deferred ProsecutionAgreement Dismissing Charges Entirely,Gleeson, J.).

On June 4, 2013 from 9:30 until 11:30a.m., I observed the STAR program inJudge Irizarry’s courtroom. There were11 offenders who were a mix of alterna-tive to incarceration and post-releasesupervisees. One person graduated fromthe program and has now finished hisfederal sentence entirely. The Chief Judgeof the EDNY, Carol Bagley Amon, pres-ent at the graduation, praised the gradu-ate, saying that he was an “inspiration toall.” She noted that this program was not“part of the official duties” for JudgeIrizarry, the federal defenders, or the pro-bation department demonstrating thecommitment that the federal courts haveto reducing recidivism.

The other 10 are in various stages fromthe first day in the program to severalmonths in the program, and are well ontheir way to completion. Many haveobtained jobs, have been sober formonths, and are involved with their fam-ilies. Some are still working towardsobriety and employment. Movementtoward the educational goals of obtain-ing a GED, or completing college cours-es, is still a challenge for the partici-pants. Competing family and workresponsibilities can interfere withaccomplishing educational goals.However, most importantly, there were

(See Recidivism on 4)

T A B L E O FC O N T E N T S

July/August 2013 / The New York County Lawyer2

By Clara Flebus, Esq.

“A negotiation is an interactive communi-cation process that may take place when-ever we want something from someoneelse or another person wants somethingfrom us.”1 People negotiate every day intheir personal and professional life,whether or not they are aware they aredoing it, without the help of lawyers orother agents. As a result, people developnegotiation styles which are generallybased on personality, self-identification,attitudes derived from family, gender, cul-ture and experience, and preconceptionsabout the process. At the negotiationtable, some people may behave morecooperatively, others may adopt a morecompetitive stance, still others may actmore pragmatically. To become success-ful negotiators, lawyers should be awareof their own basic dispositions. However,no matter what tendency or disposition alawyer may have, she can help clientsachieve better results in negotiationthrough training and experience.

In preparation for negotiation, lawyersshould carefully analyze each bargainingsituation and choose a style, or a mix oftechniques, that is best suited to achievethe clients’ goals. In addition, lawyersmay enhance their skills as negotiators bybecoming familiar with the phases of thenegotiation process, which, at a mini-mum, include relationship building,information exchange, bargaining, andcommitment. A strategic approach tonegotiation requires planning ahead whatlawyers, and their clients, will say or doat each stage of the process.

Negotiation StylesThe three most common styles used bylawyers when negotiating are: competi-tive, problem-solving, and compromis-ing. Competitive bargaining focuses onmaximizing one’s gain over that of thenegotiating counterpart. The negotiationis viewed as win-lose game where oneparty’s gain is the other side’s loss.2 Bycontrast, problem-solving is based oncollaborating with the other side to satis-fy both parties’ interests and goals. Inthis type of negotiation, also called inte-grative or win-win bargaining, a partyseeks creative solutions to maximize thegain for both sides.3 The third style, com-promise, involves trading off some ofwhat a party wants in order to get at leastsomething. In this vein, the compromis-ing negotiator considers not only his orher gain, but also what the other sidedesires in a sort of give-and-takefashion.4 Compromising, however, isoften less effective than exploringoptions created through problem-solving.As such, it is better used as a tool to finda quick solution when the time is short oras a supplement to the other styles.

As an example, if the object of a negotia-tion were a blueberry pie, the competitivebargainer would aim at dividing the pieso as to get the larger portion. The prob-lem-solving negotiator would try toincrease the size or value of the pie byadding more filling, so that both sidescould gain more and feel their solution isfair to both. Meanwhile, the compromisermight consider giving up some of the fill-ing, even though she loves blueberries,and accepting more crust, if that wouldmake the other side more amenable toreaching an agreement.

Matching Styles to SituationsA helpful method to predict the effective-ness of negotiation styles is analyzingevery bargaining situation by asking yourclient: (a) how important are the issuesinvolved; and (b) how important is therelationship between the parties toachieve their respective goals in thefuture.5 Typically, in market-mediatedtransactions such as home, car, and landsales between strangers, the stakes areconsiderably more important than anyprospective relationship.6 A predominant-ly competitive style can be effective inthis type of negotiation, where the focusis on a party’s gain, without particularconcern about the resulting relationship.A much more complex situation ariseswhen both the issues at stake and thefuture relationship between the partiesare important. This typically occurs indisputes involving employment, partner-ships, joint ventures, long-term supplierrelationships, etc.7 In such situations, themost effective negotiation styles wouldbe problem-solving or compromise.Thus, negotiators who are naturally com-petitive should be aware that bargainingtoo hard over positions without regard forthe other side’s interests and feelings mayresult in no agreement, or may poisonfuture relationships with regrets orrecriminations about the deal. As a finalnote, assessing a bargaining situation isalso critical in anticipating what stylesand techniques will likely be engaged bythe negotiating counterpart.

Relationship BuildingAfter choosing a negotiation style, or amix of techniques, lawyers should focuson how to greet the other side.Establishing rapport with the parties at

the table is perhaps the most importantaspect of the process because it facilitatescommunication. “Schmoozing” and smalltalk are helpful to dispel initial tension.This is not a novel concept, but applyingit might be less intuitive when partiesstand on opposite ground. Generally, wetend to like and trust people with whomwe have things in common. Thus, a goodmethod of building rapport is findingmutual interests, passions, backgroundexperiences, or groups, such as alumniassociations and clubs, with which bothparties identify. Engaging the other sidein a conversation about similarities andconnections will establish a positiveatmosphere early in the negotiation.8

Information ExchangeIn this phase, lawyers should test theirassumptions about the other side’s needs,

and communicate their own needs. Toavoid learning too little, or revealing toomuch, attorneys should determine whatthey want to know, what they wish todivulge, and what they prefer to keep pri-vate. In this phase, there are few generaltips to remember: (a) gather informationabout the other side’s interests, issues,and perceptions by using active listeningtechniques that involve asking questionsand paraphrasing the response to demon-strate your understanding of what a per-son said;9 (b) provide pertinent informa-tion regarding your clients’ interests andconcerns, as these factors may be the realkey to a satisfying and realistic negotiat-ed solution;10 and, (c) if you elect toreveal a bottom line, do not do so prema-turely. Remember, skilled negotiatorsprobe first, and disclose later; informa-tion about what a counterpart wants pro-vides leverage.

Competitive BargainingAt the bargaining stage, parties makeoffers, counter-offers, and concessions.Lawyers should understand bargainingtactics to maximize the benefits of nego-tiation and not be caught unprepared. Themost common competitive or “hard-bar-gaining” tactic is making extremedemands followed by small, slow conces-sions. An ambitious initial demand hasthe effect of setting the perceived bar-gaining range. However, this tactic hasthe disadvantage of reducing the proba-bility that any deal will be reached if itonly causes protracted haggling. A varia-tion consists of making a smaller demandafter the extreme one was refused. As thesecond demand may seem reasonable bycontrast, a party may feel compelled toaccept it to reciprocate the gesture ofwithdrawing the first demand. Both ver-sions of this tactic can be countered byresearching and bringing objective infor-mation to the table.

Another bargaining tactic is to eschewpresenting a counter-offer in order tocompel a party to bid against herself.This can be accomplished either by stat-ing that the offer is inadequate andrequesting a better one, or by waiting insilence until the other side makes anotheroffer simply to avoid feeling uncomfort-able. As Alexander Theroux noted,“Silence is the unbearable repartee.”

Commitment tactics can be a source ofhard bargaining; a course of action thatlimits the choices of one party in a waythat seems credible and irreversible willforce the other side to be accommodat-ing. However, there is a risk that no dealwill be made if accommodation is notfeasible. In this regard, take-it-or-leave-itoffers are also risky. If the offer is reject-ed, the negotiation may be over; if thenegotiation is not over, the tactic willsacrifice credibility. Take-it-or-leave-ittactics often can be neutralized simply bymaking some other offer.

Another common hard-bargaining tacticthat can be employed in a team setting isplaying “good cop, bad cop.” In this clas-sic ploy, one negotiator acts as the rea-sonable person, while the other on thesame team pushes for unreasonable con-cessions. Transparent competitive tacticssuch as this one, while often seen in legaldrama, are not highly successful as arule. However, this and other tactics such

Know Thyself: Styles and Tactics at the Negotiation Table

By Maria Guida

Business speaking is sometimes inef-fective, because speakers unnecessari-ly fear being perceived as “phony.”

As an attorney, if your business speak-ing lacks enthusiasm, it may bebecause you fear that using a higherenergy level is dependent upon yourexperiencing a certain emotion. Thiscan cause a “humdrum demeanor”:avoiding the kind of energy for speak-ing that truly engages your clients andprospects (and jurors).

Adopt the attitude that actors take: aspecific feeling does not have to bepresent in order for you to behave acertain way. Acting “as if” you feel orthink a certain way is the surest way toproject the qualities you choose (poiseand passion, for example) and increaseyour persuasive power. Stanislavsky(the great Russian director and teacher)called this the “magic if.”

Shakespeare was advising the samething when he wrote, “Assume avirtue if you have it not.”

Don’t wait for a feeling of happinessbefore smiling, for example. With the

act of smiling, you can “act as if” youare happy.

Behavior can certainly induce a feel-ing; actions and feelings go togeth-er. Do remember that feelings are notsubject to direct command, but behav-ior is subject to direct command.Therefore, behaving a certain way,whether one “feels” that way or not, isparamount. Behavior is king, particu-larly when your prospects and clientsare watching.

Finally, a second quote fromStanislavsky has relevance for yourbusiness speaking: “Show me what aperson DOES, and I’ll show you whohe/she IS.”

Who do your prospects and clientsperceive YOU to be? As an attorney,your speaking behavior holds the key.

Maria Guida is a speakingstrategist/coach at major law firms andlaw associations, as well as a corporateand television spokesperson. As an actoron Broadway, TV, and film, she hasworked with Paul Newman, James EarlJones, and Kevin Kline. Maria can bereached at 718-884-2282 or via email [email protected].

“Act As If:” A Tip for AttorneyPersuasive Power

(See Negotiation on Page 15)

July/August 2013 / The New York County Lawyer 3

At NYCLA’s Annual Meeting on May23, NYCLA inducted Officers andDirectors to its Board of Directors. Alongwith Barbara Moses who was inducted asPresident and featured in last month’sNew York County Lawyer, Lewis F.Tesser was inducted as President-Elect,Carol A. Sigmond as Vice President,Stephen C. Lessard as Treasurer, andDonald M. Zolin as Secretary.

The following Directors were alsoinducted, and will each contribute some-thing unique to help move theAssociation forward in its mission. Weinvite you to get to know these newBoard leaders:

Jai K. ChandrasekharNYCLA Member since 2001

Chandrasekhar, who hasbeen practicing law for 12years, practices primarilyin securities litigation onthe plaintiffs’ side. Hecurrently serves as a sen-ior counsel at Bernstein

Litowitz Berger & Grossmann LLP. As aNYCLA Board member, he hopes to helpthe Association strengthen its vital workof providing professional resources tolawyers from all segments of the bar andencouraging lawyers to represent needyNew Yorkers. He notes that this missionis more important now than ever in lightof the weak economy and the relatedstructural changes in the profession.

Hon. Helen E. FreedmanJoined NYCLA in 1989

Judge Freedman has beenon the bench nearly 35years, and has been on theAppellate Division, FirstDepartment since July2008. As a Board mem-ber, she would like to fur-

ther NYCLA’s work in urging restorationof funds to the judiciary budget, reviewNYCLA’s position concerning election ofjudges, further NYCLA’s leading role insupporting judges who are unfairlyattacked or criticized, and encourageNYCLA to explore ways to assure that noone is wrongfully convicted. She wouldalso like to work toward increasing mem-bership in NYCLA.

Hon. Emily Jane GoodmanNYCLA member since 1969

Judge Goodman waselected in 1983 andserved 29 years in CivilCourt, Criminal Court,Supreme Court(Criminal), and SupremeCourt (Civil), leaving in

2012. As a NYCLA Board member, sheis looking to help improve New YorkState’s courts, in particular, helping torestore judicial independence, which shefeels at this time is seriously threatened.

Andrew T. Hahn, Sr. NYCLA member since 2011

Hahn, who currently is alitigator and partner atDuane Morris LLP, hasbeen practicing law for27 years. As a NYCLABoard member, he hopesto help increase the

diversity of the membership.

Hon. Barbara S. JonesJoined NYCLA in 2013

Judge Jones served as ajudge for almost 17 yearsin the U.S. District Courtfor the Southern Districtof New York. She is cur-rently a partner atZuckerman Spaeder LLP

where she is focusing on corporate com-

pliance issues, and internal investiga-tions, and service as a court-appointedmonitor or special master.

Roberta A. KaplanNYCLA member since 2013

Kaplan practices com-mercial litigation at Paul,Weiss, Rifkind, Wharton& Garrison LLP whereshe is a partner. She haspracticed for 20 years andas a Board member will

look to do what she can to facilitate andimprove the laudable programs and goalsof NYCLA.

Ronald J. KatterNYCLA Member since 1988

Katter, who has beenpracticing law for 27years, founded the KatterLaw Firm in 1991 to rep-resent personal injuryplaintiffs in claims torecover money damages

for the injuries they suffer through negli-gence or abuse. He represents clients inall five boroughs of NYC and inWestchester and Nassau Counties. As aBoard member, his goals include advo-cating on behalf of solo and small-firmpractitioners, and helping NYCLAemploy social media and live sessions torecruit new members and to help trainnew leaders from the membership.

Carolyn A. KubitschekJoined NYCLA in 2003

Kubitschek, who prac-tices civil rights, family,and Social Security lawat Lansner & Kubitschek,has been practicing lawfor 39 years. As a Boardmember, she is looking to

NYCLA Inducts Officers and Directors

Dear Readers,

NYCLA has never been afraid to speakout on significant issues affecting accessto justice—including funding for thecourts, indigent criminal defense, andcivil legal services.

In 2011 and 2012, NYCLA’s Task Forceon Judicial Budget Cuts examined theimpact of $170 million in cuts on theNew York judiciary, as well as deep cutsto the federal judicial budget. We issued aseries of reports detailing the real-worldimpact of those cuts on both the courtsand the public. This year, New York’salready overloaded state court systemcontinues to struggle with a bare-bonesbudget, which has led to shorter court-house hours, longer waits for trial dates,and backups in clerk’s offices across thestate.

The federal courts, meanwhile, are reel-ing from the effects of sequestration,including reduced staffing for PretrialServices, which supervises defendantsawaiting trial, and the ProbationDepartment, which supervises individualssentenced to probation or on supervisedrelease. These reductions present both apublic safety issue and a false economy.In the words of Chief Judge Carol BagleyAmon of the Eastern District of NewYork, “If the [Pretrial Services] agency

cannot do its job, the costs are external-ized on our community.” Funding forindigent criminal defense has also beenslashed. The Federal Defenders of NewYork—charged with the representation ofcriminal defendants who cannot affordprivate counsel in the Southern andEastern Districts—have been forced tofurlough attorneys and put off trial dates.

Through our Task Force on JudicialBudget Cuts, NYCLA is once againexamining the ability of our state andfederal courts to carry out their constitu-tionally mandated functions in light ofcontinuing budget challenges. Throughour recent forum commemorating the50th anniversary of Gideon v.Wainwright, NYCLA took a probing lookat our nation’s still-unfulfilled promise of

justice for all, regardless of wealth. Andthrough our pro bono programs and com-mittee work, NYCLA is deeply involvedin helping poor and near-poor NewYorkers obtain the essential legal servicesthey need when faced with consumerdebt problems, housing emergencies, andother legal crises.In the months to come,NYCLA’s new Task Force on Meetingthe Challenge will examine New York’smost recent experiment in closing the jus-tice gap: the 50-hour rule, which willrequire bar applicants to certify that theyhave performed 50 hours of pro bonolegal services before they can be admit-ted. At the same time, the task force,working together with staff and volunteerleaders, will develop new pro bonoopportunities for NYCLA’s law studentand law graduate members.

The continuing struggle to improveaccess to justice is difficult and some-times discouraging, but it is also centralto NYCLA’s mission. I look forward toworking on these issues in the months tocome.

Barbara MosesPresidentNew York County Lawyers’ Association

Barbara MosesPresident, New York County Lawyers’ Association

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NEW YORK

COUNTY LAWYER

Barbara MosesPresident

Sophia J GianacoplosExecutive Director

Toni ValentiDirector of Marketing andMembership Development

Ariella GreenbaumEditor

Senior Communications and Social Media Manager

(See Officers and Directors on Page 14)

M E S S A G E F R O M B A R B A R A M O S E SP R E S I D E N T O F N Y C L A


Bridge the Gap 1:AProgram for NewlyAdmittedAttorneysConsecutive Fridays, July 12 and 19;9 a.m.-5 p.m.16 NYCredits: 3 Ethics; 6 Skills; 7PP/LPM; Transitional and Non-transition-al; 16 NJ Credits: 3 Ethics; 13 GeneralThis program will satisfy the first or sec-ond year MCLE requirements for newlyadmitted attorneys in NewYork State. Italso serves as a refresher course for moreexperienced attorneys looking to brush upon their skills or learn about a new area ofthe law. NOTE: New Jersey credit will begiven for this program, but it will not sat-isfy the 15 credits in 5 of 9 specified prac-tice areas required for newly admittedattorneys.

New Jersey Bridge the GapMonday and Tuesday, July15 and 16;9 a.m.-5 p.m.15 NJ Credits in 5 of 9 Specified PracticeAreasThis program is specifically designed fornewly admitted attorneys in New Jersey.It will satisfy the requirement that newlyadmitted attorneys take 15 credits in 5 of9 specified practice areas.

Bridge the Gap 2:AProgram for NewlyAdmittedAttorneysConsecutive Fridays, August 2 and 9,2013: 9:00AM – 5:00 PM16 NYCredits: 3 Ethics; 6 Skills; 7PP/LPM; Transitional and Non-transition-al; 16 NJ Credits: 3 Ethics; 13 GeneralThis program will satisfy the first or sec-ond year MCLE requirements for newlyadmitted attorneys in NewYork State. Italso serves as a refresher course for moreexperienced attorneys looking to brush upon their skills or learn about a new area ofthe law.

NOTE: New Jersey credit will be givenfor this program, but it will not satisfythe 15 credits in 5 of 9 specified prac-tice areas required for newly admittedattorneys.

Ethically Creating an Innovative LawPractice in the Recovery*Friday, August 2, 2013; 9 a.m.-5 p.m.8 NJ Credits: 3 Ethics; 2 LPM; 3 Skills;Transitional and Non-transitional; 8 NJ:4 Ethics; 4 NJ Law Practice ManagementReinvent your practice, reconnectwith clients and redefine the way you

showcase your legal talent in thisinteractive full-day program.Attendees will learn: Key techniquesfor building relationships; Effective andineffective ways to leverage socialmedia; How to ethically use publishingin print and online to enhance yourpractice; Trusted techniques for estab-lishing a stronger professional reputa-tion; Vital tools for tapping the power oftechnology to transform your practice;Navigating the pitfalls of technology…and more.*Also Day 1 of Bridge the Gap 2

Interested in a Program, But Can’tMake it to the Live Lecture?NYCLA’s CLE Institute has formed astrategic partnership with Lawline.com,a leading distributor of online content,to stream live webinars of many of ourlive programs. Be sure to check thenycla website for a list of upcomingwebinars, or visit the NYCLA brandedon-demand and live webinar page athttp://nycla.furthered.com/cle/index.php

Summer at the CLE Institute

NYCLA’s CLE Institutecourses now available forNew Jersey MCLE Credit

NewYork County Lawyers’Association’s CLE Institute iscurrently certified as anAccredited Provider of continu-ing legal education in the StateNew Jersey..

Please note that TuitionAssistance is available for quali-fied attorneys for live programsoffered by the CLE Institute.Check our website atwww.nycla.org for more infor-mation and how to apply forTuition Assistance. Check ourwebsite for course details, facul-ty, complete program descrip-tions and pricing.

Be sure to check our website fora complete listing of programs.


This spring I attended a law school grad-uation. Not only did my daughter and herclassmates receive a degree, but the ChiefJudge of the State of New York, Hon.Jonathan Lippman, also received an hon-orary degree. In fact, the Chief Judge wasthe keynote speaker. He encouraged thenew graduates to be mindful of theirresponsibilities to serve the justice sys-tem by, for example, helping the disad-vantaged and the needy. He noted thatagencies such as Legal Aid turn away asmany as 90 percent of the individualsseeking their help and that we, as a justsociety, are dependent on equal access tojustice. Do Judge Lippman’s remarkspertain to us?

In last month’s column, we asked, “Whydid you become a lawyer?” A few of theresponses:

- “I thought it would be intellectuallychallenging.”

- “My grandfather and father wereattorneys.”

- “To satisfy my intellectual curiosityand use the knowledge and experi-ences gained as a springboard toeffectuate change.”

- “My reasons are deeply personal. Mydad was falsely accused.... A team oflawyers took his case and stopped thepersecution. I never wanted to be vul-nerable myself and [I wanted] to helpthose who might need it.”

As many of you know from my CLEcourses, I believe that lawyers become

lawyers for noble reasons and that, as ademographic, lawyers are good people.Your responses did not disappoint.

We are not only lawyers but also mem-bers of the first major bar association inthe country to admit “any attorney whohad met the rigid standards set up by lawfor admission to the bar.” One ofNYCLA’s founders, Benno Lewison,observed that the Association stood for“the promotion of reforms in the law[and] the facilitation of the administra-tion of justice....” To this day, NYCLA isa progressive, inclusive and action-ori-ented organization. What’s next?

From the Cup to the LipWas it necessary for Judge Lippman toexhort new graduates to do good? Is theconcept of service to a higher callingimplicit in the license we receive andhang on our walls? Is that enough? Dogood motives and good character = gooddeeds? No, of course not. Conduct is asvital as intent. And not only is it true that“there’s many a slip twixt the cup and thelip,” it is also true that despite our goodintent, we often find it difficult to rally

the necessary energy (especially in sum-mer) to effectuate our plans. A call toaction is frequently helpful.

NYCLA is here to assist us assist our-selves and others. The NYCLAFoundation is a major component of ourability to continue our mission. TheFoundation is the fundraising arm ofNYCLA and I am honored I was electedto serve as its President this year.HERE’S ONE THING THE FOUNDA-TION SUPPORTS- Project Restore, aprogram that for years has helped providepro bono counsel to ex-offenders whomay have been inappropriately deniedemployment licenses. The Foundationhas many other projects (which we’llhighlight in future articles).

PLEASE LET ME HEAR FROM YOU

What does being a lawyer mean to you?Write to me at [email protected].

I’m told that I’ll have this column for awhile. Let’s have a discussion. I’m happyto include some of your answers andcomments in future articles. And in themeantime, please go to www.nycla.organd choose “Giving to NYCLA.” It does-n’t matter how much you give. If youcare to, send an email to me saying “I’vesupported the Foundation.”

Esprit de corps!

Lew

M E S S A G E F R O M L E W I S S . T E S S E RP R E S I D E N T O F T H E N Y C L A F O U N D A T I O N

Meet the New Foundation

Board Members

At the NYCLA Foundation AnnualMeeting on April 8, Hon. BettyWeinberg Ellerin, Mary GailGearns, and Brian D. Graifmanwere elected as new FoundationBoard members and Stewart D.Aaron, Sylvia DiPietro, SusanLindenauer, and Lester Nelson werere-elected to three-year terms. TheNYCLA Foundation is led by Chair,Vincent Chang; President, Lewis F.Tesser; Vice President, Richard A.Williamson; Secretary, MarthaCohen Stine; and Treasurer, ScottMitchell Berman.

Hon. Betty Weinberg EllerinMember of NYCLA since 1953

Hon. Betty WeinbergEllerin spent 29years as a judge —first in the CivilCourt and then as acity-wide adminis-trative judge, in the

Appellate Division. She was the firstwoman appointed as Deputy ChiefAdministrative Judge of the State ofNew York for the New York CityCourts. She was also PresidingJustice and Additional Justice of theAppellate Division of the SupremeCourt of the State of New York,First Department. Since she retiredfrom the bench over seven yearsago, she has served as senior coun-sel in Alston & Bird LLP’sLitigation & Trial Practice Group.She is very concerned about judicialindependence and serves as co-chairof the NYCLA Task Force onJudicial Independence.

Mary Gail GearnsJoined NYCLA in 2005

A Partner atBinghamMcCutchen LLP,Gearns practices inthe firm’s FinancialServices area whereshe focuses on secu-

rities regulatory and enforcementmatters and litigation. She has morethan 20 years of litigation experi-ence, and she also advises clients oncompliance and risk managementissues.

Brian D. Graifman Member of NYCLA since 1988

Graifman is the Co-Chair of NYCLA’sSupreme CourtCommittee, and hasbeen active for manyyears on the FederalCourts Committee

and the Appellate Courts Committee.Counsel at Gusrae Kaplan NusbaumPLLC, he handles complex litiga-tion and appeals, often intersectingareas of arbitration, securities, regu-latory disciplinary defense, andstate-federal jurisdiction. He saysthat he has much to thank NYCLAfor, and expects to give back byparticipating on the Board of theNYCLA Foundation, the fundrais-ing arm of NYCLA.

What Does Being a Lawyer Mean to You?


By William M. Tiersten, Esq.

Say that you are a long-time city dwellerwho just bought a new home in suburbiaand you want to learn about gardening,then you find a book called Gardeningfor the Transplant: A Guide for the NewHomeowner. You exclaim to yourself:“Eureka. This has got to be the rightbook, it sounds perfect.” Based on thisimpulse, you buy it and you begin to readit carefully and then slowly it dawns onyou that it isn’t what the title promised;in fact, it isn’t a very good or usefulbook. I am delighted to say that this isthe opposite of the experience I have hadwith Lesley Rosenthal’s practical andinspiring new book Good Counsel:Meeting the Legal Needs of Nonprofits.

Some personal disclosure is in order. I ama newly minted lawyer who spent decadesworking as a content producer for a widevariety of nonprofits. Shortly before afriend brought Ms. Rosenthal’s book to myattention, I had begun a new venture basedon providing cost-effective legal consult-ing services to nonprofits. So, when I sawthe title of the book I got excited and Iread it. Then I read it again. Then I beganmarking up my copy to make notes for apresentation to prospective clients. Then,with existing clients, I found myself fre-quently going back to the book and usingit as a practical guide, even a playbook.

Beyond that, the book is inspiring: a callto arms for lawyers, executives, boardmembers and donors to face legal chal-lenges,come to the aid of a large sector ofthe economy (11 percent it says here),and do good work for good organiza-tions. On top of that, the book is writtenas an engaging “virtual tour” through thenonprofit organization with stops in allthe many areas where legal understand-ing and advice is needed.

“Every one of these organizations faceslegal issues, and yet most do not haveregular access to counsel,” notes Ms.Rosenthal, who leads Lincoln Center’slegal efforts. And despite the businesslaw concerns of any corporation and theparticular needs of nonprofits, they tendto have a culture that is somewhat reti-cent about – even allergic to – the needfor legal assistance, or lawyers. After all,people who feel they are doing good,perhaps at the expense of doing well,tend to think that legal issues shouldn’tbe a problem. But alas, tax exempt doesnot mean law exempt and more and morenonprofits are running into serious issues.Ms. Rosenthal provides us with severaldetailed cautionary case studies rangingfrom vaunted giants like the SmithsonianInstitution to seemingly innocent ven-tures like a string quartet. And as fortoday’s news: Does Rutgers Athleticsring a bell?

Ms. Rosenthal feels that “outside or in-house, paid or volunteer, there should beone person – a general counsel – incharge of overseeing the legal affairs ofmost tax-exempt nonprofit corporations.”And as general counsel, this person indeedneeds to be a generalist. Particularly inthis age of specialization, a generalistcan guide a nonprofit through her ownefforts and by “selecting, supervisingand coordinating outside counsel wherenecessary.”

Through her virtual tour of the nonprofitoffice, Ms. Rosenthal engagingly pro-vides detailed descriptions and advicefrom the boardroom, to contracts andintellectual property, through fund-raisingand human resources. In each chapter, weare reminded of the need for oversight,education, strong working relationshipswith staff and the sine qua non for non-profit practitioners: a passion for theorganization’s mission. She always endschapters with detailed work plans andrefers us to a companion website thatprovides both more detail and furtherresources.

Throughout, she combines easy-to-readpractical advice with good humor and thepassion for the subject that she brings toit and hopes to inspire. She ends the bookwith three chapters meant specifically forthe aspiring nonprofit lawyer. We allhave heard about the need to find a nichefor one’s professional services. Howmuch better yet when that niche stemsfrom personal conviction and corre-sponds to a societal need.

Bill Tiersten Esq., a member of NYCLA’sNonprofit and Law & LiteratureCommittees, also holds a Master’s inEnglish from the University of Chicago.He is building a practice as a nonprofitspecialist.

Book ReviewGood Counsel: Meeting the Legal Needs of Nonprofits by Lesley Rosenthal

Over 8,000 patents grantedOver 15,000

trademarks obtainedOver 45 years of experience or e-mail us at [email protected]


NYCLA Holds Annual Meeting

Matrimonial Section Honors Senior Court Attorneys ofNY County Matrimonial JudgesPictured at the June 3 Matrimonial Section Cocktail Party at Battery Gardens Restaurant inBattery Park are, left to right, Hon. Deborah Kaplan; Joan Levenson, Esq., Court Attorneyto Hon. Deborah Kaplan; Lindsay Feinberg, Esq., Court Attorney to Hon. Laura Drager;Charlotte C. Lee, Esq.; Briana Denney; Hon. Lori S. Sattler; Nancy Hobbs, Esq., CourtAttorney to Hon. Lori S. Sattler; DrorBikel, Esq.; Hon Saralee Evans; Hon. Ellen Gesmer;Kristen Bebelaar, Esq. Court Attorney to Hon. Ellen Gesmer; Hon. Matthew F. Cooper,and Timothy Corbo, Esq., Court Attorney to Hon. Matthew F. Cooper.

RECENT EVENTS

On May 23, NYCLA held its 2013 AnnualMeeting and Induction of Officers andDirectors. The Law-Related Education andImmigration and Nationality Committeeswere honored with awards, Barbara Moseswas inducted as President, Stewart Aarongave a musical performance, we heard fromvery special guests, and much more.

(right) New NYCLA President BarbaraMoses gives her first remarks as President.

Hon. Sheila Abdus-Salaam (center) receives gifts of apprecia-tion from former NYCLA President, Catherine A. Christian(left) and NYCLA Executive Director, Sophia Gianacoplos(right).

Peter Dizozza (left) and Immediate Past NYCLA President, StewartAaron (right), welcome new NYCLA president, Barbara Moses, with aspecial song written to the beat of, “Leaving on a Jet Plane” by JohnDenver. NYCLA incoming Directors gather with NYCLA’s new President at Annual Meeting.

Minority Judicial Interns Welcomed atReceptionNew interns in NYCLA’s Hon. Harold Baer Jr. and Dr. SuzanneBaer Summer Minority Judicial Internship Program celebrated the2013 program kick-off at a reception on May 15. Interns NidaAlvi (second from left) and Khalil Nobles (third from left) fromCardozo, Versaly Rosales from CUNY (fourth from left),Stephanie Lin from St. John’s (fourth from right), and NoraCussy from CUNY (second from right), gather with Hon. HaroldBaer Jr. (center), Hon. Debra James (third from right), and StevenGolembiewski of Pfizer Inc. (far right).


Membership News! NYCLA Dues Structure Updated

For the first time since 2007, NYCLA has revamped its membership duesstructure. Of note:

• A complimentary year of membership will continue to be offered during thefirst year an attorney is licensed to practice.

• Dues for admitted attorneys practicing for one to two years have beenlowered to $75—only $50 if the member joined NYCLA while in lawschool or before admission to the bar.

• A senior category has been introduced for attorneys who have taken emeritusstatus with the New York State Unified Court System or who are no longerlicensed to practice.

Already a member? New rates will go into effect upon membership renewal.Not a member? Join now at the below rates.

Law-Related Education Committee Honors High School StudentsAglaia Ho (center), a student from Stuyvesant High School, was awardedwith the first place, $1,000 prize, at the Law-Related Education Committee’sHigh School Essay Contest Awards Reception on May 14. She is joined byLaw-Related Education Committee Chair, Justice Richard Lee Price (secondfrom right); Law-Related Education Committee Members Robert Stern, Esq.(far left) and Lynn Goodman, Esq. (far right); and immediate-past NYCLAPresident Stewart D. Aaron (second from left).

Nonprofit Counsel and Author Speaks at NYCLA

On June 11 author and general counsel for Lincoln Center, Lesley Rosenthal,spoke about how to become a general counsel in a nonprofit organization or acandidate for the board of directors. Attendees also had the opportunity to buyRosenthal’s newest book, Good Counsel: Meeting the Legal Needs of Non-Profits, and get it signed.


To make suggestions about books, data-bases or other NYCLA Library matters,please contact Dan Jordan, Director ofLibrary Services, by email [email protected] or by phone at 212-267-6646, ext. 204.

The NYCLA Library seeks to be theLawyers’ Toolbox for members. In addi-tion to all the needed primary sourcematerials, the NYCLA Library hasnumerous Bankruptcy treatises and formsets available through WestlawNext/Westlaw Classic, including 45+ treatisesfrom West, the American BankruptcyInstitute and the American Law Institute.Bankruptcy treatises include:

Norton Bankruptcy, Law and Practice3d Ed;The Norton Bankruptcy Dictionary; Chapter 11 Reorganizations, 2d Ed.,Chapter 13: Practice and Procedure; Tax aspects of Bankruptcy Law andPractice;Bankruptcy and Domestic RelationsManual; Strategic Alternatives for distressedBusinesses;

And many more titles concerning thefiner points of bankruptcy law.

New York State Library-AttorneyBorrower’s Card holders also haveaccess to several treatises on Bankruptcyfrom CCH/Aspen including:

Ginzburg& Martin on Bankruptcy;Bankruptcy Litigation and Practice;

Bankruptcy Litigation Manual;Advanced Chapter 11 BankruptcyPractice;Ordin on Contesting Confirmation;Strategies for Creditors in BankruptcyProceedings;Tax Planning for TroubledCorporations;CCH State Exemptions;And more.

The New York State Library-AttorneyBorrower’s Card is available to NewYork residents who are admitted to prac-tice law in New York. Holders of the cardreceive no cost, Internet access to manydatabases, including four meaningfullegal databases with extensive primaryand secondary source materials. [email protected] for information andan application to the NYSL-ABC.

Looking for New York legislative histo-ry materials? The NYCLA library canassist you in your legislativehistory/intent project and provide copiesof session laws, legislative memoranda,bill jackets and more. Give the NYCLALibrary a call at 212-267-6646, x204 orcontact us at [email protected] to findout about this NYCLA Library fee-basedservice.The NYCLA Library can also beof assistance with similar projects for theother 49 states and the federal system.

NYCLA members who have authored oredited published books or articles areasked to submit a copy of their work tothe Gladys Glickman NYCLA Authors

Collection, where works by our fellowNYCLA members are on display. GladysGlickman, who passed away in 2007,was the Contributing Editor to theMatthew Bender/Lexis treatise,Franchising. Gladys Glickman left amajor bequest for the benefit of theNYCLA Library, where she spent manyhours writing and updating her work.The Glickman NYCLA AuthorsCollection can be found on the GladysGlickman Balcony, adjacent to theDigital Resource Center.Please inscribethe title page of your work to NYCLA.

To our budding NYCLA authors, howcan the library help you?

Looking to donate sets of Lawbooks?The NYCLA Law-RelatedEducation Committee, Dan Jordan(Director of Library Services atNYCLA),and Debra Lesser from theJustice Resource Center will attempt tohelp you place your unwanted sets with awilling High School Law Program inNew York City.Contact Dan Jordan [email protected] specifying what setsyou hope to donate.Most sought sets areMcKinney’s/CLS; NYJur 2d; NYSupplement 2d; West NY Digest 4th.

1. The law books must be current with-in the last 3 years.

2. Shipping arrangements are madebetween the donor and the doneeschool in consultation with the DOEand usually require at least fourweeks lead time.

3. All acknowledgements regarding thegift are between the donor anddonee.

4. There is no guarantee that a willingdonee will be found for your offer ofa gift.

New Jersey Treatises onWestlawNext/WestlawDid you know that WestlawNext/Westlaw, on the Patron terminals in theNYCLA Library, now have access toNew Jersey treatises and form booksfrom Westlaw? The titles are:

Commercial Law Form Finder - NewJersey New Jersey Forms Legal and Business(a seventeen volume set)New Jersey Forms: Business &CommercialNew Jersey Pleading and PracticeForms (a seventeen volume set)New Jersey Practice Series (30+ trea-tises: L&T, Wills, Criminal, Family,DUI, etc.)

Interesting recent Reference questions:-A scholar from a foreign Universitycame in to research the Lindy Hop andthe law and to look for court records.-Verdict Searches-the value of a brokenankle with no surgery.-Verdict Searches-Seeking experts onmeat mincer/kitchen equipment safety.

How can we help you and your practicetoday? Contact [email protected].

JJuullyy

Westlaw: Introduction to WestlawNextJuly 10 – 10-11 a.m.1 MCLE Credit: 1 Skills; TransitionalFree and open to the public

Westlaw: Trusts & Estates LawResearch on Westlaw NextJuly 10 - 11:30 a.m.-12:30 p.m.1 MCLE Credit: 1 Skills; TransitionalFree and open to the public

Lexis: IJuly 23 – 10:30– 11:30 a.m.1 MCLE Credit: 1 Skills; TransitionalFree and open to the public

Lexis: IIJuly 23 – 12:00 – 1:00 p.m.1 MCLE Credit: 1 Skills; TransitionalFree and open to the public

Lexis: LitigationJuly 23 - 1:30 - 2:30 p.m.1 MCLE Credit: 1 Skills; TransitionalFree and open to the public

U.S. Bankruptcy Court ElectronicCase Filing SystemJuly 24 – 10 a.m.-12:30 p.m.2.5 MCLE Credits: 2.5 Skills;Transitional (Also NJ)Member: $65 Non-member: $85Non-legal Staff: $35

Westlaw: What’s New on WestlawNextJuly 30 - 1:30 - 2:30 p.m.1 MCLE Credit: 1 Skills; TransitionalFree and open to the public

Westlaw: NY Materials LawResearch on Westlaw NextJuly 30 – 3 - 4 p.m.1 MCLE Credit: 1 Skills; TransitionalFree and open to the public

AAuugguusstt

Westlaw: Introduction to WestlawNextAugust 7 – 10-11 a.m.1 MCLE Credit: 1 Skills; TransitionalFree and open to the public

Westlaw: Form Finder & FormBuilder on Westlaw NextAugust 7 - 11:30 a.m.-12:30 p.m.1 MCLE Credit: 1 Skills; TransitionalFree and open to the public

Lexis: IAugust 9 – 11:00 a.m. – 12:00 p.m.1 MCLE Credit: 1 Skills; TransitionalFree and open to the public

Lexis: IIAugust 9 – 12:30 – 1:30 p.m.1 MCLE Credit: 1 Skills; TransitionalFree and open to the public

Lexis: LitigationAugust 9 - 2:00 - 3:00 p.m.1 MCLE Credit: 1 Skills; TransitionalFree and open to the public

U.S. Bankruptcy Court ElectronicCase Filing SystemAugust 14 – 10 a.m.-12:30 p.m.2.5 MCLE Credits: 2.5 Skills;Transitional (Also NJ)Member: $65 Non-member: $85Non-legal Staff: $35

Westlaw: What’s New on WestlawNextAugust 21 - 1:30 - 2:30 p.m.1 MCLE Credit: 1 Skills; TransitionalFree and open to the public

Westlaw: Enviromental LawResearch on Westlaw NextAugust 21 – 3 - 4 p.m.1 MCLE Credit: 1 Skills; TransitionalFree and open to the public

Using Bloomberglaw.com forLitigationAugust 29 – 10 - 10:50 a.m.1 MCLE Credit: 1 Skills; Transitional(Also NJ)Free and open to the public

Using Bloomberglaw.com for aCorporate Transactional PracticeAugust 29 - 11:05 - 11:55 a.m.1 MCLE Credit: 1 Skills; Transitional(Also NJ)Free and open to the public

LIBRARY NOTES

Electronic Research Center CLE Programs


NYCLA In The NewsA roundup of recent national and localnews stories featuring NYCLA and itsmembers

WNYC RadioBrooklyn D.A. Show Criticized June 3, 2013Recently some people have questionedwhether the CBS series about theBrooklyn District Attorney’s officegives prosecutors an unfair advantage.NYCLA’s President, Barbara Moses,commented on this on WNYC Radio,citing the case of Jabbar Collins, whowas found guilty of murder in 1995and released in 2010 after a federaljudge vacated his conviction. Collins isnow suing Brooklyn D.A. Charles

Hynes and other prosecutors, who heaccused of unconstitutional actions, for$150 million.“Some of the assistantdistrict attorneys involved in his casewere on the first episode of the CBSshow and were portrayed in a veryfavorable light,” said Moses. “If I wereMr. Collins’s attorney, I would be con-cerned about that.”

HuffingtonPost.comWedding Trailblazers: The ReverendD Talks Officiating OffbeatWeddingsMay 28, 2013In this article about offbeat weddings,the NYCLA Home of Law is mentionedas a venue for one such wedding.

The Committee on Professional Ethicsaccepts both written and telephone inquirieson ethics matters and provides advisory opin-ions. For additional information, call themembers listed below.

July 1-15 Ronald Minkoff212-705-4837

July 15-31Joseph Vogel212-997-7634

August 1-15Barry Temkin212-804-4221

August 16-31David Wirtz212-583-2699

September 1-15Glen Schleyer212-558-7284

September 16-30Philip Ross212-421-4000

Please Note: Assignments are subject tochange.

Questions to the Hotline are limited to an inquir-ing attorney’s prospective conduct. The Hotlinedoes not answer questions regarding past con-duct, the conduct of other attorneys, questionsthat are being litigated or before a disciplinarycommittee or ethics committee, or questions oflaw. This notation shall not be construed to con-tain all Hotline guidelines. For a full discussionof Ethics Hotline guidelines, please see the arti-cle below, “Guidelines on NYCLA’s EthicsHotline,” published in the September 2006 issueof New YorkCountyLawyer.

Ethics Hotline

NYCLA In The News

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Dr. N.G. Berrill, Director


The Myths about Long-Term CareLong-term care issues have been every-where in the news lately – from stories ofpeople needing these services to how thegovernment is responding. But there isalso a lot of conflicting, and even mistak-en, information. Misconceptions mayhave prevented you from including long-term care planning into your retirementportfolio. But long-term care planningcan be a critical component to any com-prehensive retirement plan. So now is thetime to dispel these myths.

Myth #1: I’ll never need long-termcare.Most people can’t imagine themselvesneeding long-term care services. But, theU.S. Department of Health and HumanServices indicates that people age 65 faceat least a 40 percent lifetime risk ofentering a nursing home sometime duringtheir lifetime1. Living a long life mayincrease your risk of needing long-termcare. Isn’t it better to insure against whatthat risk may do to your family and yourfinancial plans?

Myth #2: Long-term care is only forthe elderly.Actually, a surprising amount of long-term care services are provided toyounger people. The U.S. GovernmentAccountability Office estimates that 40percent of 13 million people receivinglong-term care services are between theages 18 and 642. The unexpected needfor long-term care could arise at any agefor any number of reasons, including ill-ness, or an accident.

Myth #3: I’ll pay for my own long-term care.In 2012, nursing home costs averagedover $91,000 a year nationally, but insome regions these costs are sometimestwice that amount3. How long can youpay for these expenses without jeopardiz-ing your financial plan or exhaustingyour savings? It may make good sense totransfer this financial risk just like you dowith your homeowner’s insurance or autoinsurance. Even if you can afford to payfor long-term care services out of pocket,why would you want to when you cantransfer the cost to an insurer for premi-ums that may total a fraction of the costof care?

Myth #4: Medicare will cover my long-term care expenses.Medicare does pay for nursing homecare, but only for a maximum of 100days and if the 3-day qualifying hospitalstay requirement has been met. In addi-tion, Medicare will only pay as long asyou are showing progress toward recov-ery. Once your condition becomes stable,even if you are not fully well or back to acompletely healthy state of being,Medicare rules indicate that benefits willstop. Also, Medicare does not pay forindividuals to attend an adult day care orfor the room and board expenses at anassisted living facility.

Myth #5: Medicaid will cover my long-term care expensesMedicaid was developed partially tocover long-term care costs for

Americans of any age who need helppaying for those services. Medicaid iscurrently the largest payer of long-termcare costs in the United States, primarilyfor care in nursing homes. However,Medicaid focuses on helping peoplewith limited or minimal income andassets, and in order to qualify for bene-fits, you have to demonstrate a financialneed for help. Qualifying means spend-ing nearly all of your own money onyour own care before the governmentwill step in to help.

Myth #6: My family will take care ofme. The financial, physical and emotionalstress that full-time care-giving mayplace on families can be overwhelming.Many families have struggled to providecare for parents or siblings only to even-tually realize that the care required ismore than they can provide. The truth is,sometimes the best way for a family totake care of a loved one needing long-term care is to make sure that they haveaccess to professional care. With theadvances in home care services, manypeople needing long-term care are actual-ly able to stay at home, with or near fam-ilies, and still get the professional carethey need.

Myth #7: Long-term care insurancecovers only nursing homes.Everyone wants to stay at home. Long-term care insurance can offer valuablebenefits that may keep you at home foras long as possible. Long-term care

insurance can also help cover the cost ofcare in other locations, such as adult daycare centers, assisted living facilities andhospice care.

With long life comes long-term planning.Make a plan for you and your familytoday. For more information on long-termcare insurance, please contact Thomas A.Martin, J.D., Agent, New York LifeInsurance Company at (914) 626-2024.

The purpose of this piece is solicitation ofinsurance. An insurance producer (agent)may contact you. New York Life InsuranceCompany long-term care insurance is issuedon policy form series ILTC-5000 and INH-5000 with a state identifier and edition date.Examples: for Idaho ILTC-5000 (ID)(1001) and INH-5000 (ID) (1001) and forNorth Carolina ILTC-5000 (NC) (1001)(Rev. 0606) and INH-5000 (NC) (1001)(Rev. 0606) and for Pennsylvania ILTC-5000 (PA) (1001), FLTC-5000 MLP (PA)(0503), for Tennessee ILTC-5000 (TN)(1001) and INH-5000 (TN) (1001) and forTexas ILTC-5000 (TX) (0305) and INH-5000 (TX) (0305). New York LifeInsurance Company, 51 Madison Avenue,New York, NY 10010.

References:1Health Insurance Association of America.A Guideto Long-Term Care Insurance. 2007. Page 3.2Health Insurance Association of America.A Guideto Long-Term Care Insurance. 2007. Page 3.3 New York Life Insurance Company. Survey ofNursing Home Costs. 2012.


Practicing in NYC’s Criminal Courts Aided by Updated Manual2013 Edition Now Available—Purchase and Help Support a Worthy Cause

2013 NYCLA High School Essay Contest: First Place EssayTopic: Should a sports team be pun-ished for the improper conduct off thefield of its players or coaches?

By Aglaia Ho

Sports are a popular pastime in America.However, what often grasps our attentionin competitive sports, apart from theexcitement and entertainment of aSunday football game, are the scandals.When players or coaches of prominentsport teams come under fire, the worldtakes notice. Sport scandals pop up fre-quently on professional, college, andamateur fields. They range from thedirest, like drug use and abuse, to themost trivial, like blemishes in an individ-ual’s personal life. Regardless of howserious the transgression, misconduct offof the field leads to the same conse-quence: a collective punishment. Thispenalty comes in many forms, be it strip-ping the team of its titles or merely dam-aging the reputation of the affected team.Nevertheless, the punishment shouldalways fit the crime. Under certain cir-cumstances, the entire team should bearthe burden of the improper conduct. Still,occasionally, the individual perpetratorshould take one for the team.

A person’s actions must be analyzed interms of cause and effects. Do this per-son’s actions directly or indirectly affectthe team as a whole? Does the miscon-duct affect the team’s success and per-formance during a game?

We can study improper conduct in threecategories: 1) misbehavior of individualplayers that affect the performance and/orsuccess of the team, 2) misbehavior of

individual players that do not affect theperformance of the team, and 3) misbe-havior of coaches whose actions repre-sent their teams as a whole.

The first category involves serious mis-conduct by an individual player thataffects the performance of the entireteam. This would encompass, for exam-ple, drug use. When a player uses per-formance-enhancing drugs, he affects theoutcome of a game. He could miracu-lously excel during a competition and hisperformance can make the differencebetween winning and losing. Significantchampionships can be unfairly wonbecause of this individual’s ill-judgedactions. When dealing with this type ofmisconduct, the entire team must be pun-ished because its victories were notachieved fairly. Collective punishment isnecessary to maintain sport ethics. It canact as an effective deterrent for cheating.This is similar to how society must dealwith the consequences of the actions ofan individual for the protection of thegreater good. We must deal with height-ened security at the airport, even thoughwe are not all terrorists. It is importantthat everyone bears this burden for thesake of international security.

The second category deals with a player’simproper behavior that does not affect theperformance of the team. This wouldinclude scandals that solely involve flawsin a player’s personal life, such as, sexscandals and criminal behavior. This typeof behavior not only makes good gossip,but also results in an inadvertent collec-tive punishment: a ruined reputation foreveryone. Nevertheless, the team shouldnot be punished for a player’s actions.

What he chooses to do off of the field, inhis personal life, will definitely affect theteam’s mood and relationships betweenplayers. Nonetheless, other outside factorscan affect the dynamics of a team in thesame way. If a player gets married, getsdivorced, or gets sick, the ambiance caneasily change. Furthermore, the player’smisconduct off of the field in these situa-tions usually does not affect the team’ssuccess. The individual should be heldsolely responsible for his misbehavior. Inthe scandal of Jets football player BrettFavre, there was no reason for the entireteam to be punished for his misconduct.He was wrong for texting inappropriatecontent, but his slipup did not affect howthe Jets performed. Thus, he was chargedfor his crime, but the rest of the team wasnot. This situation is no different from anordinary citizen committing a wrongdo-ing. If a criminal robs a bank, he is theone that is prosecuted. If the offender’sfamily and friends were not involved inthe robbery, they are not tried for havingconnections to the criminal. Collectivepunishment would not be fair or logical.

The third category involves inappropriatebehavior of coaches who are leaders andoverall representations of their teams.Players are bound to follow their coach-es’ decisions despite any ethical breachesthat may be involved. Thus, if a coachmanipulates a game, the entire teamshould be punished because the miscon-duct can easily affect the outcome of agame. This happened during the 2012Olympics, when several badminton teamspurposely threw a few matches to theiradvantage. The teams involved were dis-qualified. A coach’s actions in their per-sonal lives can also affect the team as a

whole. A coach may be involved in adevastating abuse scandal, like PennState assistant football coach JerrySandusky. Players could have been awareof these incidents, but choose to keepquiet in order to maintain their positionon the team. Some might also have beenthe unfortunate victims of a coach’s abu-sive behavior. When players becomeentwined in a coach’s personal dilemma,their performance on the field might beaffected due to fear or pressure. In a caseso serious, the entire team needs to take ahit so that justice can be truly served.Yet, a coach may also be involved inpetty scandals in their personal lives,which do not have the same gravity as anabuse case. In those instances, the coachcan take full responsibility of his actionsand the rest of the team should not.

Sometimes, it is difficult to define “fair.”When it comes to team sports, “fair”might not entail solely an eye for an eye.When people are bounded in groupactivities where an individual’s actionscan lead to a Rube Goldberg machine ofcause and effects, sometimes “fair” mustbe sacrificed. At times, an entire sportsteam must be punished for the actions ofan individual. Yet, during other times,teams do not deserve to have ruined rep-utations because of the unrelated behav-ior of individual players or coaches. Itall depends on the action, the effects ofthe actions, and the severity of the mis-conduct.

Aglaia Ho is a student at StuyvestantHigh School and the first place winner inNYCLA’s 2013 High School EssayContest, sponsored by the Law-RelatedEducation Committee.

The 2013 NYCLA New York CityCriminal Courts Manual is an invalu-able resource for criminal practitionersin New York City. Since 2010, NYCLAhas sold hundreds of copies of theManual to large, medium and smallfirms, law schools, prosecutors, anddefense attorneys from New York City,counties in upstate New York and LongIsland, New Jersey, Pennsylvania,Connecticut, and Florida. Whether youare an experienced criminal practitioneror handling your first criminal case inNew York City, the Manual containscritical information in an easily accessi-ble format.

The Manual contains the fundamentalsof criminal law in New York such as:commencement of an action, arraign-ment practices in Criminal and Supreme

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no reports of re-arrests. The programalso monitors the participants stateoffenses, if any.

One critical aspect of STAR, which hasbeen lost, is the funding for vocationalprograms such as welding. Previously,STAR used the Second Chance Act3funds to pay for a participant’s weldingcourse at a cost of $2000. The partici-pant graduated from both STAR and thewelding program. Funds are no longeravailable to pay for such courses.

According to Judge Irizarry the “cost ofthe program cannot be quantified.” It isthe restoration of offenders to being pro-ductive members of society, and theirsuccessful reintegration into society withno further criminality, or drug use thatare the measurements of accomplishmentfor the reentry programs.

EDNY Pretrial Opportunity (POP)Program STAR is one of several drug treatmentcourt programs in the EDNY. Anotherprogram with the acronym POP (PretrialOpportunity Program) is administered byJudge John Gleeson and MagistrateJudge Steven M. Gold which begun in2012.4 POP is administered by thePretrial Services Agency and is directedby the Board of Judges.5 The program isauthorized by 18 USC §3154 governingpretrial services and supervision of crim-inal defendants. POP is a collaborativeeffort of the judges, defense attorneys,prosecutors, and pre-trial services. The

goal of POP is to reduce incarcerationand recidivism. (see Pretrial OpportunityProgram).

POP is modeled after the state courtdiversion programs. Sometimes offend-ers post-sentence who need further drugtreatment are allowed to join the POPgroup. The post-sentence group ofoffenders are a part of REAP (RelapsePrevention and Accountability Program).POP/REAP offenders are those whosedrug use led to their crimes. Accordingto Judge Gleeson, the “crimes do notinvolve violence, or being a leader in adrug trafficking organization.” TheJudge stated that there must be a “causalrelationship” between the drug use andthe crime. Participants must have a his-tory of substance abuse.

Since 2012, there have been five gradu-ates. One very successful graduate hadher charges dismissed entirely, and wasprofiled in a March, 2013 New YorkTimes article.6 Another graduate had adrug conspiracy charge reduced from afelony to a misdemeanor possessioncharge.7 The other graduates fared wellin terms of sentencing.

In order to graduate, participants mustmaintain sobriety for 12 consecutivemonths, earn their GEDs if applicable,and obtain jobs. POP/REAP is notaffected by the cuts in Second ChanceAct funds because most of the partici-pants have Medicaid funding, or privateinsurance to pay for the drug treatmentprograms.

Judge Gleeson wrote in the statement ofreasons for each of the three offenders

who graduated, two from POP, and onefrom SOS (Special Options Services)8that the programs helped the governmentto save thousands of dollars by place-ment of the offenders in the pre-sentencediversionary programs rather than inprison.9 The alternatives to incarcerationapproach weeded out low-level offendersfrom more serious drug managers ofdrug distribution chains for treatment oftheir underlying drug addiction ratherthan strict adherence to an ineffectivepunitive approach possibly leading tocontinued criminality. It is too early tomeasure the recidivism rate forPOP/REAP, or SOS, but early reports areencouraging.

Southern District of New York(SDNY) Program The SDNY runs a program entitledSOAR (Supervision Opportunities toAdvance Re-entry). Judge Baer overseesthe program, assisted by MagistrateJudge Henry Pittman. Begun in 2012,SOAR is the first program of its kind inthe SDNY. Judge Baer stated that theSDNY program is patterned after theEastern District Court of Pennsylvania’sre-entry program or STAR (Supervisionto Aid Reentry) begun in 2007.

SOAR has had two “classes” of ex-offenders who are in the process of com-pleting the supervised release part oftheir sentences. Participants are chosenbased upon their likelihood of recidi-vism. Participation is voluntary.Participants can choose to remain just onsupervised release without a re-entryprogram. There have been five malegraduates per class aged 30 to 40. Someparticipants have served sentences aslong as 17 years, but some less than ten10 years. The offenders have includedthe “major crimes,” but instead are forthe most part lower level, non-violentoffenders. Most return home to theirfamilies.

The program is one year long and theparticipants are required to sign a con-tract agreeing to the rules, and regula-tions of the program and agreeing to setand meet goals to enhance their chancesof successful reintegration into society.The participants should have no re-arrests.

From 5 to 7 p.m., the participants talk toJudge Baer, or in his absence, MagistrateJudge Pittman. The first hour-and-a-halfis a progress report on how the partici-pants are succeeding in meeting job,educational, and housing goals. From 5to 7 p.m., the participants receiveinstruction from the service programproviders, and from the probationdepartment.

According to Judge Baer, the program iscurrently “suspended” while the FederalJudicial Center evaluates the recidivismrates of the program participants versusnon-participants. Judge Baer stated thatany evaluation that assesses the first“six-months” after the program wouldconclude that the program participantshave lower recidivism rates.

SOAR was supported by the SecondChance Funds Act, but due to sequestra-tion, effective March 2013, the programfunds have been cut jeopardizing thereinstallation of the program. SOARrelied heavily on outside providers suchas the Fortune Society to re-acclimatethe ex-offenders into jobs and home life,but the funds for paying the providers

are no longer available.

Judge Baer hopes that if and when theprogram is reinstated that it will beextended to two years, rather than thecurrent one year, and that there will beeducational therapy, and a psychologicalcomponent (such as anger managementtraining) that evaluates the participantsprior to entrance into the program.

The success rate of the alternative toincarceration programs in the EDNY andSDNY has not yet been conclusivelydetermined. However, anecdotal reportsindicate reduced criminality, quickerreintegration into society, and rehabilita-tion of drug addicts who engaged incriminality as a result of their longstand-ing addictions. While there is debateover whether or not this is the purviewof the federal courts10, what is clear, isthat the bench, bar, pretrial services, andprobation services all benefit from mov-ing offenders out of the criminal justicesystem faster and possibly permanently.

Laury A. Betha, Phd., Esq. is a memberof NYCLA’s Federal Courts and LGBTCommittees. She is a solo-practitionerwith the Law Office of Laury A. Betha inFort Lee, NJ. She works collaborativelyin New York with George Bundy Smith &Associates, P.C.

References1 Ware, Jamie M., The Supervision to Aid Reentry(STAR) Program: Helping Previously IncarceratedFederal Prisoners Succeed in Transitioning Back tothe Community, Philadelphia Social InnovationsJournal, (March, 2011), Available at,http://www.philasocialinnovations.org/site/index.php?option=com_content&view=article&id=253:the-supervi-sion-to-aid-reentry-star-program-helping-previous-ly-incarcerated-federal-prisoners-succeed-in-transi-tioning-back-to-the-community&catid=20:what-works-and-what-doesnt&itemid=31. (last visitedJune 7, 2013).2 Irizarry, D. STAR Program Description, U.S.District Court Eastern District of New York (September 19,2012).3 The Second Chance Act (P.L. 110-199) wassigned into law April 9, 2008. The Act providedgrants to “government agencies and nonprofitorganizations to provide support strategies andservices designed to reduce recidivism by improv-ing outcomes for people returning from prisons,jails and juvenile facilities.” “The Second Chance Act’s grant programs arefunded and administered by the Office of JusticePrograms in the U.S. Department of Justice.”Available at, http://csgjusticecenter.org/nrrc/pro-jects/second-chance-act/ (last visited June 5, 2013)see also, Justice Department Announces $58Million to Improve Reentry Outcomes, GrantsSupport Improved Probation and ReentryPrograms. Available at,http://www.justice.gov/opa/pr/2012/October/12-ag-1185.html (last visited June 5, 2013).4 The POP program in Central Islip is supervisedby Judge Joanna Seybert and Magistrate JudgeGary Brown.5 United States Pretrial Services Agency EasternDistrict of New York, Pretrial OpportunityProgram, (January, 2012)6 Secret, M., “Outside Box, Federal Judges OfferAddicts a Free Path,” The New York Times,(March 1, 2013).7 Gleeson, J. Statement of Reasons For AcceptingDeferred Prosecution Agreement DismissingCharges Entirely (11-CR-00609)(February 28,2013) (Available from Judge Gleeson), at pp. 11-128 Id. at p.22.(The SOS program started in January,2000, and was revamped in January, 2013. Theprogram focuses on non-violent juvenile and youngadult offenders (18-25) and is supervised byMagistrate Judges Joan M. Azrach and Cheryl L.Pollak).9 Id. at p. 7, fn. 24.10 Id. at pp. 25-35.

Recidivism(Continued from page 1)

continue the good work that NYCLA hasbeen doing.

Jay G. SaferNYCLA Member since 2002

Safer has practiced lawfor 40 years and practicescommercial business liti-gation and internationalarbitration at Locke LordLLP. As a NYCLADirector, he would like to

continue making NYCLA meaningfuland helpful to attorneys and enhanceNYCLA’s role in the legal communityand the public.

Diana S. SenJoined NYCLA in 2012

Sen has practiced law forabout 13 years, and cur-rently works for the U.S.Department of Labor inthe capacity of theRegional Director of theOffice of Federal

Contract Compliance Programs NortheastRegion. As a former national presidentof the Hispanic National Bar Association,she hopes to help NYCLA expand itsHispanic membership and to supportNYCLA’s many diversity initiatives.

Edward M. SpiroNYCLA Member since 1977Spiro is a partner at MorvilloAbramowitz Grand Iason & Anello P.C.practicing commercial litigation. Hewas admitted to the New York bar inMarch 1977 and has been practicing

law in New York Cityover the past 36 years.As a Director, he hopesto work on issues ofspecial interest to attor-neys such as meritselection of judges and

equal access to justice. At the sametime, he would like to see NYCLAexpand its relationship with our largercommunity by promoting a variety ofpro bono activities.

Richard A. WilliamsonNYCLA member since 1972

Williamson, who haspracticed commerciallitigation for over 40years, is a partner atFlemming ZulackWilliamson ZaudererLLP. He is looking to

carry on NYCLA’s wonderful tradi-tions of being of service to the pub-lic, the bench and the bar and help-ing our new President BarbaraMoses for whom he has the highestregard.

Jacqueline C. WolffJoined NYCLA in 2012

Wolff, who has prac-ticed law for over 25years, practicesCorporate Investigationsand White CollarDefense at Manatt,Phelps & Phillips,

LLP where she is a partner. She islooking to help continue NYCLA’slegacy to promote reforms that canhave an impact on both the law andpublic policy.

Officers and Directors(Continued from page 3)


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as belittling the other party’s alternatives,making threats and warnings, walkingout, and table pounding, persevere.11

If you are naturally competitive, but wantto avoid the pitfalls of competitive bar-gaining, you should concentrate on ask-ing more questions, and make a concert-ed effort to understand what is reallyimportant to the other side. Another tip isto avoid haggling over every issue, andconsider making concessions on lessimportant items.

Problem-SolvingProblem-solving requires a set of tacticsdesigned to explore parties’ interests, pri-orities, and differences that can be inte-grated to reach a mutually satisfyingagreement. In problem-solving, partiesmake big concessions on issues that areless important, and small concessions onthose that are more important. A simpleway to figure out a party’s priorities is toask: “Do you care more about X or Y?”Parties can create value in negotiation notonly by unearthing shared interests, butalso by trading on differences.

Options that exploit differencesbetween the parties may be found indifferent access to resources, futureexpectations, time preferences, and risktolerances. For example, a client may

be willing to pay more for the servicesof an architect in exchange for thearchitect ordering materials at his tradediscount, which would not be availableto the client otherwise. Meanwhile, par-ties negotiating the sale of a businessmay agree on a base price plus a per-centage of the business’ increased rev-enues if they have different expecta-tions about the market value of thebusiness in the future. If it is worthmore to a prospective tenant to move inearly than it costs the vacating tenant tomove out early, the latter may agree onan early moving-out date in exchangefor compensation. Finally, parties whohave different risk preferences can cre-ate a mutually beneficial agreement byallocating risk to the more risk-tolerantparty for a price that is acceptable to theparty that is more risk-averse.12

What if the other side is not willing todisclose its interests, but instead focuseson positions and makes extremedemands? Be prepared to deflect thesecompetitive tactics by sticking to prob-lem-solving techniques. Reframe whatyour counterpart says as an option, sug-gestion, or possible outcome, and pro-pose discussing some other way toresolve the issue. Do not fall into the trapof reacting to hard bargaining.

ImpasseIf there is a fundamental impasse, some-times it is best to take a break andreassess the situation. An effective way tojump start the negotiation is to remind the

parties of common interests and goals thathave been identified already, as well asthe time and resources spent negotiating.A negotiator can generate movement alsoby asking hypothetical questions to gathermore information and create additionaloptions. Another strategy may be to tablea contentious issue and seek agreementon less difficult items. Although animpasse can be frustrating, it is importantto show a positive attitude and dedicateyourself to reaching a solution.

CommitmentHopefully, all your hard work in bargain-ing and making concessions will producea negotiated solution. But, “[t]he goal ofall negotiations is to secure commitment,not merely agreement.”13 Lawyersshould consider employing devices thatmay help guarantee the performance ofthe underlying agreement, such as secu-rity bonds, deposits in escrow accounts,down payments, etc. It is equally impor-tant to anticipate problems that mayoccur in the future. “Time bombs” canbe avoided by including specific clauses,such as non-disparagement, protection oftrade secrets, limitation on consequentialdamages, confidentiality, etc., in yourterm sheet. In addition, a release ofclaims agreement should be used whenappropriate.

Becoming an effective negotiator requirespreparation and experience. As a lawyer,you can use your analytical skills tounderstand the negotiation process.

However, the first step was carved into theTemple of Apollo at Delphi: ‘know thy-self.’ By learning about your natural dis-positions, you can adopt styles and tech-niques that are best suited to your negotia-tion, and adapt to varying circumstances.In this way, you can achieve the best pos-sible outcome for your specific clients,and success generally as a negotiator.

Clara Flebus, Esq., LL.M., a NYCLA mem-ber, is an Appellate Court Attorney in NewYork Supreme Court, and Secretary forArts for Peace, a 501 (c) (3) charity, forwhich she negotiates on a regular basis.She is a member of NYCLA’s AppellateCourts, Arbitration and ADR, and Foreign& International Law Committees, andYoung Lawyers’ Section.

References

1 G. RICHARD SHELL, BARGAINING FOR ADVANTAGE,28-30 (Penguin Books 2006).2 See Gary Goodpaster, A Primer on CompetitiveBargaining, 1996 J. DISP. RESOL. 325, 326 (1996).3 See id. at 328.4 See id. at 327.5 See SHELL, supra note1,at 120-121.6 See id.at 121.7 See id.at 125.8 See id.at 140-142.9 See ROBER H. MNOOKIN, SCOTT R. PEPPET&ANDREW S. TOLUMELLO, BEYOND WINNING –NEGOTIATING TO CREATE VALUE IN DEALS ANDDISPUTES, 63-65 (Harvard University Press 2000).10 See id.at 28-30.11 See id.at 24.12 See MICHAEL WATKINS, HARVARD BUSINESSESSENTIALS - NEGOTIATION, 60-61 (HarvardBusiness School Publishing 2003).13 SHELL, supra note1,at 191.

Negotiation(Continued from page 2)

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