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M a y 2 0 0 8 V o l u m e 4 / N u m b e r 4V i s i t u s a t w w w . n y c l a . o r g

NYCLA MAY 15PUBLIC FORUM:FINANCIALCONSEQUENCES OFCRIMINALCONVICTIONS - NEWFEES AND FINES INNEW YORK’SCRIMINAL JUSTICESYSTEM

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NYCLA CELEBRATESLAW DAY 2008

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NYCLA ISSUESETHICS OPINION ONMETADATA SEARCH

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The New York County Lawyers’ Association wasfounded 100 years ago as the first major bar associa-tion in the United States to admit members without

regard to race, ethnicity, religion or gender. On May 21, 1908,NYCLA held its first membership meeting in theMetropolitan Life Insurance Company’s Assembly Room.NYCLA’s first officers, all of whom were members of theoriginal Committee on Organization, were: President JohnForrest Dillon, a former U.S. Court of Appeals judge for theEighth Circuit; Vice President Alton Brooks Parker, a formerchief judge of the Court of Appeals; Vice President JosephFrancis Daly, a former chief judge of the Court of CommonPleas; Vice President William Wallace, a former FederalCircuit Court judge; Secretary Charles Strauss; and TreasurerDenis A. Spellissy. (For more information about NYCLA’sfirst officers, please refer to the Centennial article on page 9.)

One hundred years later, on May 22, 2008, beginning at 5:30PM, NYCLA is marking its Centennial Anniversary at itsAnnual Meeting, which is taking place at St. Paul’s Chapel,across the street from the Home of Law. Hon. Judith S. Kaye,Chief Judge of the State of New York, will be the keynotespeaker. The officers to be inducted are: Ann B. Lesk, a partnerat Fried, Frank, Harris, Shriver & Jacobson LLP as President,James B. Kobak Jr., a partner at Hughes Hubbard & Reed LLPand president of the NYCLA Foundation as President Elect,Joel B. Harris, a retired partner at Thacher Profitt & Wood LLPas Vice President, Ernest E. Badway, a partner at FoxRothschild LLP as Treasurer; and Stewart D. Aaron, a partnerat Arnold & Porter LLP as Secretary. Following the induction

ceremony, a gala celebration will take place at the Home ofLaw with champagne, hors d’oeuvres and live classical music.

When NYCLA celebrated the 75th Anniversary of its Homeof Law in 2005, Hon. Judith S. Kaye, Chief Judge of the State ofNew York, an Honorary Member of NYCLA, said, “...in ourHome of Law we come together as a family to preserve andenjoy what is best about our profession, while ensuring that theprofession continues to meet the needs of an evolving society.”

Centennial Theme: Advocating Equality...Creating Opportunities

NYCLA’s Centennial theme – AdvocatingEquality…Creating Opportunities – embodies NYCLA’simpact on the profession and on public policy. Since its incep-tion, NYCLA has advocated for reforms in the law and in theadministration of justice, elevated the standards of integrityand professionalism, and provided free legal services to theindigent and others in need. The Association’s current roster ofpro bono programs range from providing legal information andassistance in resolving a problem before legal action is taken torepresenting individuals who are challenging an adverse deci-sion. The programs address such core concerns as: housing,family issues, estate planning and consumer debt.

NYCLA has also advocated for increased diversity in theprofession and the elimination of the remaining barriers to fullequality for women, minorities and members of the lesbian,gay, bisexual and transsexual communities.

NYCLA’s MembershipNYCLA’s 10,000 members enjoy an expansive committee

structure comprising 50 committees and sections that embracevirtually all practice areas.

NYCLA’s CLE InstituteThe CLE Institute’s unparalleled roster of experts from the

bench, bar, government, academia and related disciplines con-duct a wide variety of programs to keep pace with attorneys’changing needs.

NYCLA FoundationThe NYCLA Foundation, headed by James B. Kobak Jr., is

in the midst of a Centennial Capital Campaign. Thus far, it hasraised nearly $1.5 million from large firms, NYCLA andNYCLA Foundation Board members, NYCLA past presidentsand NYCLA members. The 2007/2008 Centennial Appeal tomembers has garnered almost $24,000 and still has six monthsto go. (For more information about the NYCLA Foundation,please refer to the article on page 4.)

NYCLA Board of DirectorsThe outgoing members of NYCLA’s Board of Directors are:

Lucas A. Ferrara, David J. Lansner, Susan B. Lindenauer,William H. Sloane, Anthony L. Soudatt, Rita W. Warner andStephanie Wheeler. The incoming directors are: Vincent T.Chang, Louis Crespo, Hon. Margaret J. Finerty, Hon. Marcy S.Friedman, Bruce A. Green, Sue C. Jacobs, Susan Y. Kunstler,Barbara Moses, Carol A. Sigmond, Herbert L. Thornhill, SusanJ. Walsh and Richard A. Williamson.

All are invited to help NYCLA celebrate its Centennialyear. To rsvp, please email amendez@nycla.org and write‘Centennial Annual Meeting’ on the Subject line.

MESSAGE FROMTHE PRESIDENT

Catherine A. Christian

CHILDREN ARE OUR FUTURE

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NYCLA celebrates Centennial Anniversary:Hon. Judith S. Kaye to be keynote speaker

at May 22 Annual Meeting

CENTENNIALPAGE

RememberingNYCLA’soriginalofficers

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M a y 2 0 0 8 / N e w Y o r k C o u n t y L a w y e r 3

Alan Kahn, Seasoned CLE Lecturer…4

Annual Meeting Notice…6

Centennial Calendar of Events…3

Centennial Page...9

Remembering NYCLA’s Original Officers

Centennial Celebration Event:

NYCLA’s Library Committee Hosts Book

Signing Reception...9

CLE Programs...7

CLE Tech Programs...12

Discount Offer for NYCLA Members-

Laurence Fishburne in Thurgood…7

Ethics Hotline…11

Exchanging Property Rights…11

Gladys Glickman Gives $2.7 Million to

NYCLA…4

Legal Fellows Program at NYS Unified

Court System…11

Library Notes…10

Lunch in Chambers Program…3

Member Benefits…3

Members in the News…4

Message from the CLE Director…7

Message from the NYCLA Foundation

President…4

Message from the President…5

Metropolitan Museum Concert

Series…11

NYCLA Issues Ethics Opinion 738…6

NYCLA Presents Public Forum on

Financial Consequences of Criminal

Convictions...13

NYCLA Task Force Co-Chair Receives

State Bar Award…6

NYCLA’s Task Force on Professionalism

Launches Blog…7

NYS Unified Court System Offers

Clerkships…11

Past Events…8

Practice of Law Series...10

Public Policy Development…4

Theater Discounts…11

T A B L E O F C O N T E N T S

Events are subject to change; please check the Association’s website, www.nycla.org, for schedule changes and additions.

C E N T E N N I A LE V E N T S C A L E N D A R

MAYCENTENNIALCELEBRATION EVENT: THEFINANCIALCONSEQUENCES OFCRIMINAL CONVICTIONS -NEW FEES AND FINES INNEW YORK’S CRIMINALJUSTICE SYSTEMThursday, May 156:00 PMPlace: NYCLA Home of Law – 14Vesey StreetFREESpeakers: Sarah B. From, Director ofPublic Policy and Communications,Women’s Prison Association; GlennMartin, Associate Vice President ofPolicy and Advocacy, The FortuneSociety; Alan Rosenthal, Co-Director of Justice Strategies, Centerfor Community Alternatives; andMichael Yavinsky, Chief CourtAttorney, Criminal Court of the Cityof New York and Co-Chair, NYCLACriminal Justice SectionModerator: David Udell, Director ofthe Justice Program, BrennanCenter for JusticeSponsors: NYCLA Justice Center,Criminal Justice Section and CivilRights and Liberties CommitteeRSVP: dlamb@nycla.org and write‘May 15 event’ in the Subject line.

CENTENNIALCELEBRATION EVENT:NYCLA’S ANNUALMEETINGThursday, May 225:30 PMPlace: Meeting at St. Paul’s Chapel(across the street from NYCLA);Reception to follow at NYCLAHome of Law – 14 Vesey StreetFREEA presentation of the President’sAnnual Report and the induction ofNYCLA officers and directors.NYCLA officers to be inducted are:Ann B. Lesk as President, James B.Kobak Jr. as President Elect, Joel B.Harris as Vice President, Ernest E.Badway as Treasurer and Stewart D.Aaron as Secretary.RSVP: vfeliciano@nycla.org andwrite ‘2008 Annual Meeting’ in the

Subject line.(For more information, please referto the front-page article.)

JUNECENTENNIALCELEBRATION EVENT:MATRIMONIAL LAWSECTION’S ANNUALCOCKTAIL PARTYTuesday, June 36:00-8:00 PMPlace: Seaman’s Institute, The TopDeck – 241 Water Street (Parkingavailable across the street.)Honoring matrimonial judges ofNew York CountyTickets (includes open bar and horsd’oeuvres): Members (as of May 27,2008): $100; Nonmembers: $150Reception Chair: Charlotte C. LeeRSVP (by May 27): Ms. Lee, 212-732-3366 or emailclee@charlottelee.com. Please makechecks payable to NYCLAMatrimonial Law Section and mailto: Charlotte C. Lee, 277 Broadway, Suite 100, New York, NY 10007.

CENTENNIALCELEBRATION EVENT:CIVIL COURT PRACTICESECTION’S ANNUALAWARDS DINNERThursday, June 126:00-9:00 PMPlace: New York Athletic Club – 180Central Park SouthHonorees: Hon. Jonathan Lippman,Presiding Justice, AppellateDivision, First Department; Hon.Rolando T. Acosta and Hon. KarlaMoskowitz, Appellate Division, FirstDepartmentTickets: $150 per person; $1,500 fora table of 10RSVP: Please make checks payableto NYCLA Civil Court PracticeSection and mail to: Civil CourtPractice Section Dinner, NYCLA, 14 Vesey Street, New York, NY10007

Hon. Paul Crotty, U.S. DistrictCourt, Southern District ofNew York, will host NYCLA’s“In Chambers” program onTuesday, June 10, at 12:30 PMin his chambers at 500 Pearl

Street, chambers 735. To rsvp,please email Jeffrey M.Kimmel, co-chair, YoungLawyers’ Section, atjkimmel@salsack.com.

The Professional DisciplineCommittee, which studies allmatters affecting professionallicensing and discipline, hasroom for a limited number of

new members. To become amember, go to www.nycla.organd log on to the Members-Only section, and then clickon ‘Join a Committee.’

Lunch In Chambers Program

4 M a y 2 0 0 8 / N e w Y o r k C o u n t y L a w y e r

Dear Friend:

NYCLA is celebrating itsCentennial year with myriad pro-grams, fora and receptions – somelooking back at its vibrant heritageand others looking forward to thefuture of NYCLA and the profession.I hope you will take part in theseactivities. At the same time, theNYCLA Foundation has embarkedon a NYCLA Centennial CapitalCampaign and I hope you will partic-ipate in that effort as well. Support byall our members is critical to main-taining a Home of Law for all lawyersin New York in both a metaphoricaland literal bricks-and-mortar sense.

This 78-year-old Home of Lawneeds maintenance and repair and ajudicious overhauling to meet theneeds of modern lawyers. TheNYCLA Foundation commissioned athorough architectural study, whichhas led to a basic plan for major workon both the exterior and interior ofthe building. At a bare minimum, thecost of this necessary effort is in therange of $5,000,000 to $8,000,000 tobe incurred over the next severalyears. This work simply must be doneand cannot be deferred any longer.Once it is done, the building should besound for many years into the future,and NYCLA’s facilities, and thereforeultimately, its programs and services,will be improved.

And, of course, aside from the

building, endowment fundscontinue to be as necessary asever to support and enrichNYCLA’s programming andservices for lawyers and thepublic.

I am proud to report thatalmost $1.5 million has beenraised to date from large firms,NYCLA and NYCLAFoundation Board members, NYCLApast presidents and NYCLA members.The special 2007/2008 CentennialAppeal to members has garneredalmost $24,000 and still has six monthsto go.

I am also delighted to announcethat NYCLA will receive a very spe-

cial bequest of at least $2.7million from longtimemember Gladys Glickman forthe Library. This is the largestgift of any kind in NYCLA’shistory, and we are verygrateful for it. Gladys wrotemuch of a well-known trea-tise on franchise law upstairsin our Library, and we plan to

name an area in the Library afterher.

The Foundation needs the supportof every one of our members toenable us to continue serving as aresource for future generations oflawyers and New Yorkers. Probablyfew, if any, of our members could

match Gladys’s gift, but all can matchher in generosity of spirit.

Contributors of $100 receive aCentennial DVD about NYCLA andwill be a Centennial Member of theCampaign. Those who give at higherlevels will be eligible for other spe-cial gifts commemorating theCentennial, which include anengraved Tiffany crystal Windhambox, a special limited-editionCentennial print and an autographedcopy of our Centennial book.

I hope you will carefully considerthe contribution levels describedbelow, along with the gifts theNYCLA Foundation will provide, andbe as generous as possible.Contributions of $1,000 or more maybe pledged over two years.Contributions at the levels of $5,000carry permanent recognition andnaming opportunities are availablefor donations of $15,000 or more.

Donors to the Centennial CapitalCampaign can send their contribu-tions (made payable to the NYCLAFoundation) to the NYCLAFoundation, 14 Vesey Street, NewYork, NY 10007 or make their contri-butions online by logging on towww.nycla.org and clicking onNYCLA Foundation and then onOnline Giving.

Sincerely,James B. Kobak Jr.President, NYCLA Foundation

CONTRIBUTION LEVELContribution Designation NYCLA Foundation Gift/Recognition$100 Centennial Member NYCLA Centennial DVD$250 Centennial Friend Autographed Centennial Book$500 Centennial Partner Limited Edition Print$1,000 Centennial Fellow Autographed Centennial Book and

Limited Edition Print$2,500 Centennial Supporter Autographed Centennial Book, Limited

Edition Print and Recognition onPlaque at the Home of Law

$5,000 Centennial Patron Autographed Centennial Book, Framed Limited Edition Print, Tiffany Crystal Windham Box and Recognition on Plaque at the Home of Law

$15,000 Centennial Leader All Centennial Patron Gifts and Recognition, Plus a Naming Opportunity at the Home of Law

A M E S S A G E F R O M T H E P 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

James B. Kobak Jr.

In 1939, Gladys Glickman gradu-ated from college; 20 years later, shegraduated from law school and sub-sequently joined NYCLA. She was aSustaining Member, solo practi-tioner and author of Franchising(published by Matthew Bender),first published in 1969 and updatedthree times a year. Ms. Glickmandied last year and made a generousbequest in her will of at least $2.7million to NYCLA. According toJames B. Kobak Jr., President of theNYCLA Foundation, “This is thelargest gift of any kind in NYCLA’shistory, and we are very grateful forit.” He added, “Gladys wrote muchof her well-known treatise on fran-chise law upstairs in our Library, andwe plan to name an area in theLibrary after her.”

A former vice president in the

legal department of Gruner & JahrU.S.A. Publishing, Ms. Glickman hadalso previously served as generalcounsel to Parents MagazineEnterprises before starting her ownlaw practice.

Among the NYCLA committeesand sections to which she belongedwere the Cyberspace Law andForeign and International LawCommittees and the Entertainment,Media, Intellectual Property andSports Law (EMIPS) Section. Ms.Glickman was an active member ofNYCLA’s Trade RegulationCommittee, participating in forumsand researching reports issued bythe Committee. She was also amember of the American BarAssociation’s Business Law andIntellectual Property Sections andits Subcommittee on Franchising.

PUBLIC POLICY DEVELOPMENTNEW YORK, NY – MARCH 17, 2008 – NEW YORK, NY – NYCLA sent aletter to Governor David A. Paterson in support of legislation to create anOffice of Indigent Defense Services as a preliminary step towards the estab-lishment of an independent Indigent Defense Commission.

To read statements, reports, amicus briefs, letters and other documentsrelated to NYCLA’s public policy initiatives, log on to www.nycla.org andclick on News and Publications.

Gladys Glickman, longtime NYCLA member,gives more than $2.7 million to NYCLA Alan Kahn, an attorney and

senior tax partner and head offorensic accounting at KBL, anational accounting firm, hasbeen a member of NYCLA forover 40 years. In 2007, Mr.Kahn received the award foroutstanding committee chairfor his work with the TaxationCommittee, which he had chaired forthe past seven years. He is currentlythe secretary for the Committee onCommittees and serves as NYCLA’sliaison with the IRS in a cooperativetax program.

Mr. Kahn, a frequent CLE lecturer,will teach his 20th CLE course on May

12, titled “How to AnalyzeFinancial Statements.” He hasalso lectured on various taxlaw subjects, including: currenttax trends, taxation of variousbusiness entities, taxation ofawards, verdicts and settle-ments, estate taxation andplanning, taxation of awards

and verdicts in eminent domain pro-ceedings, ethics, multi-disciplinaryorganizations, financial planning forsolo and small-firm practitioners,starting and maintaining a law prac-tice, taxation of employees’ stockoptions, working with a forensicaccountant and handling tax audits.

This column spotlights memberswho have appeared in the media orhave published books. Members areinvited to contribute information toAnita Aboulafia, CommunicationsDirector, at aaboulafia@nycla.orgfor inclusion.

Hon. George Bundy Smith, chair ofthe NYCLA Justice Center andBoard member, received theAmerican Bar Association’sCommission on Racial and EthnicDiversity’s Spirit of ExcellenceAward in February. In addition, an

interview with Judge Smith, who is apartner at Chadbourne & ParkeLLP, appeared in the April 2008issue of The Metropolitan CorporateCounsel.

As of June 1, 2008, Simeon Baumand Leona Beane, past chairs ofNYCLA’s Arbitration and ADRCommittee, will begin to serve aschair and vice chair respectively ofthe New York State BarAssociation’s new DisputeResolution Section.

MEMBERS IN THE NEWS

Alan Kahn: Seasoned CLE lecturer

Alan Kahn

James B.Kobak

M a y 2 0 0 8 / N e w Y o r k C o u n t y L a w y e r 5

The education of our youth isan issue near and dear to me. Ihave had the opportunitythroughout my legal career to visithigh school classrooms to speak toadolescents about their legalrights, career paths and the impor-tance of education. I have stressedto them that it is with an educa-tion and only with an educationthat they will be able to succeed.In this, my last column asNYCLA’s President, Igive a heartfelt thanksto NYCLA’s Law-Related EducationCommittee and theYouth Law EducationProject of NYCLA’sJustice Center for themany hours its mem-bers have contributedover the years to theeducation of youngpeople.

Under the leadership of NewYork State Supreme CourtJustice Richard Lee Price, theLaw-Related EducationCommittee’s Lawyer in theClassroom program brings vol-unteer lawyers to New YorkCity high schools. The lawyersprovide young people with theknowledge and tools necessaryto make their voices heardwithin our democracy. The com-mittee also visits Justice Price’sBronx courtroom, where atten-dees range from elementary,middle and high school studentsto undergraduates and parents.Other members of the LRECommittee pay visits to variouscampuses throughout New YorkCounty, including to elementaryschools and art institutes.

Justice Price, who has servedas chair of the Committee forthe past 25 years, has presidedover civil and criminal trials for

26 years. He has also partici-pated in the New York State BarAssociation’s Statewide MockTrial Competition, the MurryBergtraum Evening AdultSchool’s Law for the LaypersonProgram, Continuing Educationfor Small Claims Arbitrators andthe Hosting Students in theCourtroom education program.Under his leadership, in additionto classroom visits by lawyers,

the Committee andits subcommitteeshave been respon-sible for numerousother innovative pro-jects, including thesponsorship of anannual essay contestand public forums.

This year is the 14thanniversary of theNew York City High

School Essay Contest. Over 150students have entered the com-petition, in which they wereasked to write on the subject ofgang violence, specifically: “TheMayor has just established a newanti-gang commission and hasappointed you as Commissioner.Your goal is to reduce or elimi-nate criminal gang activity andrecruitment in New York City.How would you define a “gang”or “gang member” and howwould you recommend targetingthe “gang” or “gang member?”Students were asked to discussexisting laws and/or suggest newlaws that would support theirrecommendations. The top fouressayists will receive cash prizesat an awards ceremony atNYCLA on May 21.

On May 7, the Committee issponsoring a conference on gangviolence: “Can We DevelopGang Prevention Strategies?Saving Our Children, Saving

Our Future.” The conference isthe first in a series to explorewhat can be done to successfullycombat the growing crisis ofgang violence that has plaguedmany parts of New York City.

In March 2007, the NYCYouth Law Manual, the center-piece of NYCLA’s Youth LawEducation Project, was pub-lished. Written in an easilyunderstandable format by ateam of lawyer volunteers, theManual is designed to educatehigh school students about theirrights and responsibilities as cit-izens and provide informationabout law-related careers. TheManual, coupled with teachertraining seminars, citywide stu-dent conferences and careerdays, delivers current, accurateinformation about legal issuesof critical importance to theapproximately 35,000 studentsenrolled in law-related pro-grams in New York City highschools. In April 2008, a work-shop for parent coordinatorswas presented by NYCLAmembers who discussed crim-inal, housing, consumer creditand family law. The project isguided by the NYCLA JusticeCenter.

As we celebrate NYCLA’s100th anniversary, we can takepride in our contributions to theeducation of our youth and allof the other accomplishments ofthis great democratic bar associ-ation. We can also look forwardto all that is yet to be done.

A M E S S A G E F R O M T H E P R E S I D E N T

Catherine A. Christian New York CountyLawyers’ Association 14 Vesey StreetNew York, NY 10007-2992. Phone: (212) 267-6646 Fax: (212) 406-9252

Catherine A.Christian

President

Sophia JGianacoplosExecutive Director

Mariana HoganChair, Newsletter

Editorial Board

Marilyn J. FloodCounsel to NYCLA

Executive Director of the NYCLA Foundation

Anita AboulafiaEditor

Director of Communications

Nicole PierskiCommunications Assistant

Long Island Business NewsAccount ExecutivesRenee Stuto

631-913-4262Pat Kunder

631-913-4227Copyright © 2007 New YorkCounty Lawyers’ Association. All rights reserved. New YorkCounty Lawyers’ Associationgrants permission for articles andother material herein or portionsthereof to be reproduced and distributed for educational or professional use through direct contact with clients, prospectiveclients, professional colleaguesand students provided that suchuse shall not involve any matterfor which payment (other thanlegal fees or tuition) is made and provided further that allreproductions include the nameof the author of the article, thecopyright notice(s) included inthe original publication, and anotice indicating the name anddate of the Association publica-tion from which the reprint ismade. Subscription rate: $10.00per year for non-members

New York County Lawyer is published monthly (exceptJanuary and August) for $10 per year by New York CountyLawyers’ Association, 14 VeseyStreet, New York, NY 10007.Periodicals postage paid is mailedat New York, NY and additionalmailing offices. POSTMASTER:Send address changes to: NewYork County Lawyer, 14 VeseyStreet, New York, NY 10007-2992.

USPS #022-995ISSN: 1558-5786

$10.00 of membership dues is deducted for a one-year subscription to the New YorkCounty Lawyer.

Photo Credits:Anita Aboulafia

Dan Jordan

Children Are Our Future

Notice of Annual Meeting on Thursday, May 22 at 5:30 PM

at St. Paul’s Chapel(across the street from NYCLA)

Annual Report of the PresidentTreasurer’s Report

Election of Officers and Directors

On January 22, 2008, the following were nominated as officers and directors by theCommittee on Nominations.

Nomination of Officers:President Ann B. LeskPresident Elect James B. Kobak Jr.Vice President Joel B. HarrisSecretary Stewart D. AaronTreasurer Ernest E. Badway

Board of Directors:

Class of 2009: Bruce A. GreenSue C. Jacobs

Class of 2011: Vincent T. ChangLouis CrespoHon. Margaret J. FinertyHon. Marcy S. FriedmanSusan Y. KunstlerBarbara Moses Carol A. SigmondHerbert L. ThornhillSusan J. WalshRichard A. Williamson

Committee on Nominations:

Class of 2011: Janiece Brown SpitzmuellerSylvia Fung ChinRosalind S. FinkRobert L. HaigNorman L. Reimer

Printed below is a proxy for your use if you cannot attend the Annual Meeting. Pleasesend your completed proxy to Ruth Zipper by email at rzipper@nycla.org; by mail,Attention: Ruth Zipper, New York County Lawyers’ Association, 14 Vesey Street,New York, NY 10007; or by fax (fax: 212-406-9252) prior to the Annual meeting onMay 22, 2008.

PROXYFor Annual Meeting of Members of the

NEW YORK COUNTY LAWYERS’ ASSOCIATION To Be Held May 22, 2008

Know all people by these presents: That the undersigned Member of New YorkCounty Lawyers’ Association hereby constitutes and appoints Catherine A. Christian,Ann B. Lesk and James B. Kobak Jr., or any of them, proxies of the undersigned, withfull power of substitution to each, for, and in the name, place and stead of the under-signed, to attend the Annual Meeting of Members of the New York County Lawyers’Association, to be held at St. Paul’s Chapel on May 22, 2008 at 5:30 PM and anyadjournment or adjournments thereof; and thereat to vote upon all matters that mayproperly come before said meeting as fully and with the same effect as the under-signed might or could do if personally present at said meeting or any adjournment oradjournments thereof.

The undersigned hereby revokes any proxy or proxies heretofore given by, for or onbehalf of the undersigned to vote at said meeting or any adjournment or adjournmentsthereof.

Dated:

(Signature)

(Please Print Name)

(Provisional and law student members may not vote.)

6 M a y 2 0 0 8 / N e w Y o r k C o u n t y L a w y e r

by Sylvia Shweder

The Professional EthicsCommittee issued Ethics Opinion738 in March, concluding that it isunethical for a lawyer to search formetadata in correspondence, con-tracts or other documents sent elec-tronically to opposing counsel.

Opinion 738 found that a lawyerwho sends electronic correspon-dence with metadata, which is infor-mation describing the history,tracking or management of an elec-tronic document and may includechanges that were made to a docu-ment, is making a disclosure that ispresumed to be inadvertent. “Byactively mining an adversary’s corre-spondence or documents for meta-data under the guise of zealousrepresentation,” the Opinion states,“a lawyer could be searching onlyfor attorney work product or clientconfidences or secrets that opposingcounsel did not intend to beviewed.”

The NYCLA Ethics Opinion,which does not address electronicdocuments in the form of documentdiscovery, helps to guide lawyers inan area in which the American BarAssociation and the New York StateBar Association have disagreed. In2006, ABA Formal Opinion 06-442permitted review of metadata indocuments that opposing counselsend electronically. An earlieropinion by NYSBA did not permitmining for such metadata.

NYCLA found that the NYSBArule is a better interpretation of theCode’s disciplinary rules and ethicalconsiderations and New York prece-dents than the ABA’s opinion onthis issue. The Opinion states:“[W]hen a lawyer sends opposing

counsel correspondence or othermaterial with metadata, thereceiving attorney may not ethicallysearch the metadata in those elec-tronic documents with the intent tofind privileged material or if findingprivileged material is likely to occurfrom the search.”

While the Opinion finds thatlawyers who receive electronic cor-respondence and other documentsshould not mine the material’s meta-data, it also cautions lawyers whosend documents electronically to“scrub” the documents (softwareexists that deletes the history of aWord or Excel document) or scanthem into a PDF format prior tosending material to their adver-saries. “[E]very attorney has theobligation to prevent disclosingclient confidences and secrets byproperly scrubbing or otherwiseprotecting electronic data sent toopposing counsel,” the Opinionstates.

Several other state bar associa-tions’ ethics committees have alsorecently opined along the lines ofthe NYSBA rule, including that ofFlorida, Alabama and Arizona.

To read Ethics Opinion 738 andall other NYCLA ethics opinions, goto www.nycla.org and click on News& Publications and then on EthicsOpinions.

Ms. Shweder, a Vice Chair ofNYCLA’s Professional EthicsCommittee, is an Assistant UnitedStates Attorney in the EasternDistrict of New York. The viewsexpressed in this article do not nec-essarily represent the views of theDepartment of Justice or theUnited States.

In April, Professor Jane M. Spinak,Clinical Professor of Law atColumbia Law School and co-chair of NYCLA’s newly formedTask Force on the Family Court,received the Howard A. LevineAward for Excellence in JuvenileJustice and Child Welfare from theNew York State Bar AssociationCommittee on Children and theLaw. The task force that she co-chairs with Hon. Howard Miller,Appellate Division, Second

Department, will discuss and pri-oritize the recommendations ofNYCLA’s two Family Court con-ferences, “The Family Court inNew York City in the 21st Century:What Are Its Roles andResponsibilities?,” and the 2007follow-up forum. In addition,Professor Spinak was quoted in aNew York Times article on April18, 2008 regarding a case in Texasin which 416 children were foundliving in a polygamist compound.

NYCLA Task Force Co-Chairreceives State Bar Award

NYCLA issues Ethics Opinion 738

M a y 2 0 0 8 / N e w Y o r k C o u n t y L a w y e r 7

Spring Programs at the CLE InstituteThis spring, the CLE Institute is offering a variety

of programs that should appeal to attorneys in manydifferent practice areas. Real estate practitioners willbe interested in the May 15 program, How to Complywith the City’s New Building Code, which takes effecton July 1, 2008 and applies to owners of both new andexisting buildings. The program will be held from 9:00AM-12:30 PM. It is co-sponsored by the CommunityHousing Improvement Program (CHIP) and RentStabilization Association (RSA) and will featurespeakers from the Department of Buildings. (Fee: $75,members; $125, non-members; $35, non-attorneys).On June 12, from 6:00-9:00 PM, we will conduct a pro-gram, Beyond the Basics: Co-ops, Condos and 1-4Family Real Estate Transactions, where attendees

will learn the more esoteric issues arising during realestate transactions. (Fee: $125, members; $165, non-members). Litigators will not want to miss the May 13program, Roadblocks, Pitfalls and EthicalConsiderations in State Appellate Practice, from6:00-9:00 PM. A panel from the bench and bar, fea-turing Hon. Eugene F. Pigott Jr., New York Court ofAppeals, will cover the civil and criminal sides of theappellate process. (Fee: $125, members; $165, non-members). Similarly, on Monday evenings, June 2 and9, from 6:00-9:00 PM, Program Chairs Hon. GerardLynch (SDNY) and Joel Silverstein will lead anunparalleled panel of experts in discussing WinningCases in Federal Court. (Fee: $175, members; $225,non-members). Further, two additional “how-to” pro-grams will be presented this spring. On Monday, May12 from 6:00-9:00 PM, examine basic accounting prin-

ciples and learn the relevant terms used in accountingpractice at the program, How to Analyze FinancialStatements. (Fee: $125, members; $165, non-mem-bers). On Monday and Tuesday, June 16 and 17, learnthe basics of how to evaluate an employment discrim-ination case at Handling Employment DiscriminationCases, from 6:00-9:00 PM on both days. (Fee: $175,members; $225, non-members).

Finally, don’t miss a special NYCLA CentennialEvent on Wednesday, May 21 from 8:30-10:45 AM. Joinus in welcoming members of the Lille Bar Association,who will join with some of their American counterpartsfor a lively discussion at an Ethics Roundtable:Handling Fee Disputes in the U.S. and France.Breakfast will be provided and 2.5 MCLE credits inEthics can be earned. (Fee: $50, members; $75, non-members).

MESSAGE FROM BARI CHASE, CLE DIRECTOR

Thursday, May 86:00 – 8:00 PMGOING GREEN: GREEN BUILDINGS101-WHAT EVERY LAWYER SHOULDKNOW2 MCLE Credits: 2 Professional Practice;Transitional and Non-TransitionalEarly Registration (on or before 5/6)Member: $50Non-Member: $75Registration Fee (5/7 - 5/8)Member: $75Non-Member: $100

Monday, May 126:00 – 9:00 PMHOW TO ANALYZE FINANCIALSTATEMENTS3 MCLE Credits: 3 Skills; Transitional andNon-transitionalEarly Registration Fee (on or before 5/10)Member: $125Non-Member: $165Registration Fee (5/11 - 5/12)Member: $150Non-Member: $190

Tuesday, May 136:00 – 9:00 PMROADBLOCKS, PITFALLS ANDETHICAL CONSIDERATIONS INSTATE APPELLATE PRACTICE3 MCLE Credits: 1 Ethics; 2 Skills;Transitional and Non-TransitionalEarly Registration Fee: (on or before 5/11) Member: $125Non-Member: $165Registration Fee (5/12 - 5/13)Member: $150Non-Member: $190

Thursday, May 159:00 AM – 12:30 PMHOW TO COMPLY WITH THE CITY’SNEW BUILDING CODE3.5 MCLE Credits: 2 Professional Practice;1.5 Skills; Transitional and Non-TransitionalEarly Registration Fee (on or before 5/13)Member: $75 Non-Member: $125 Non-Legal Staff: $35Registration Fee: (5/14 - 5/15)Member: $100 Non-Member: $150 Non-LegalStaff: $60

Tuesday, May 206:00 PM – 7:45 PMA PERFECT STORM: RACE, LAW ANDCRIMINAL JUSTICE2 MCLE credits: .5 Ethics, 1.5 ProfessionalPractice; Transitional and Non-TransitionalEarly Registration Fee (on or before 5/18)Member: $30 Non-Member: $55Registration Fee: (5/19 - 5/20)Member: $55Non-Member: $80

Wednesday, May 218:30 – 10:45 AMCENTENNIAL EVENT — ETHICSROUNDTABLE: HANDLING FEEDISPUTES IN THE U.S. AND FRANCE2.5 MCLE Credits; 2.5 Ethics; Transitional and Non-TransitionalEarly Registration Fee (on or before 5/19)Member: $50Non-Member: $75Registration Fee: (5/20 - 5/21)Member: $75Non-Member: $100

CLE PROGRAMS IN MAY

In April, NYCLA’s Task Forceon Professionalism launched aninteractive ProfessionalismBlog. Through this blog, the taskforce seeks to generate a senseof community by offering aforum to voice views andincrease awareness of issuesthat concern us all. Find outabout the professionalism issuesthat are being talked about inour community and make sureyou add your thoughts andcomments while you are vis-iting. The Professionalism Blogcan be accessed from the front

page of NYCLA’s website(www.nycla.org). TheProfessionalism Blog is a col-laborative effort of Task ForceChair James B. Kobak Jr.,Hughes Hubbard & Reed LLP,and Task Force memberMadeleine Giansanti Cag,Gregory P. Joseph Law OfficesLLC. The Professionalism Blogis only a click away — so comeby the proverbial water coolerand let us know the profession-alism issues you face or fear (orboth!) as a legal practitioner.

Did you know... ? Hon. ThurgoodMarshall, the first African American toserve on the Supreme Court, was aNYCLA member.

Laurence Fishburne is a Tony Awardwinner, Drama Desk Award winner,Outer Critics Circle Award winner,Emmy Award winner, Academy Awardnominee and the recipient of a TheatreWorld Award. His performances havebeen deemed “brilliant,” “riveting” and“electrifying” by The New York Times.Perhaps best known to movie audiencesfor his performances in the blockbuster“The Matrix” series, Fishburne has alsostarred in such films as “MissionImpossible 3,” “Bobby,” “What’s LoveGod to Do With It” and “Boyz in theHood,” among many others. Fishburneportrays Thurgood Marshall, who rosefrom the back streets of Baltimore to theSupreme Court of the United States,overcoming whatever obstacles societyplaced in his way. Thurgood is hisremarkable story, a triumph of courage—

not just for the man, but for the nation hebravely challenged and proudly served.

Special $50* Offer: Available for perfor-mances through June 1 only.Three Easy Ways to Order: 1) Online. Visit www.broadwayoffers.comand enter code THWCEB8.2) By Phone. Call (212) 947-8844 andmention code THWCEB8.3) In Person. Beginning in May, bring aprint out of this offer to the BoothTheatre Box Office, 222 West 45th Street.

Performance Schedule: Tues-Sat at 8PM, Wed & Sat at 2 PM, Sun at 3 PM

*Offer valid for performances through June1. Blackout dates may apply. A $1.50 facilitiesfee is included in the price of each ticket.Schedule subject to change. Offer subject toavailability. Normal service charges apply toonline and phone orders. No exchanges orrefunds. All sales are final. Cannot be com-bined with other offers. Not valid for priorpurchases. Offer may be revoked at any time.

NYCLA’S Task Force onProfessionalism launches blog

Discount offer for NYCLA members-Laurence Fishburne in Thurgood

8 M a y 2 0 0 8 / N e w Y o r k C o u n t y L a w y e r

In April, participants from last year’s SpeedNetworking and Rainmaking Skills Workshop reunitedand shared their successes and challenges. Pictured(from left to right) are: Freddy Smith, FinancialWomen’s Association (FWA) event co-chair and finan-cial advisor with UBS Financial Services, Inc.; featuredspeaker Andrea Nierenberg, president of theNierenberg Group; Susan L. Harper, co-chair ofNYCLA’s Women in Law Strategies for Success Series,FWA event co-chair and associate with Baritz &Colman, LLP; and Gene Sullivan, business developmentconsultant with John Hancock Funds, which sponsoredthe event’s wine-and-cheese reception.

Supreme Court Committee celebrates 25th Anniversary of Law Day Luncheon and50th Anniversary of Law Day

NYCLA’s Supreme Court Committee celebrated the 25th Anniversary of its LawDay Luncheon and the 50th Anniversary of Law Day on April 18 at Cipriani WallStreet with a presentation of the Capozzoli Gavel Award to the AppellateDivision, First Department. Hon. Judith S. Kaye, Chief Judge of the State of NewYork, presented the award and Hon. Jonathan Lippman (at the lectern),Presiding Justice, Appellate Division, First Department, accepted it on behalf ofthe Court. Also pictured are former and current members of the AppellateDivision, First Department.

Supreme Court Committee co-chairs Howard W. Burns Jr. (farleft) and Henry J. Kennedy (farright) presented certificates for 25years of distinguished judicial ser-vice to (from left to right): Hon.Bonnie G. Wittner, Supreme Court,New York County; Hon. Judith S.Kaye, Chief Judge of the State ofNew York; Hon. Bernard Fried,Supreme Court, New York County;and Hon. Edward J. McLaughlin,Supreme Court, New York County.

Four NYCLAcommittees/sectionshost public forum on

estate planningIn March, four NYCLA committees/sections – RealProperty and Estates, Trusts and Surrogate’s CourtPractice Sections, and Elder Law and TaxationCommittees – presented a public forum, “Real Estateand Taxation Issues in Estate Planning,” with Martin M.Shenkman, Esq. (in the middle), partner, Martin M.Shenkman, P.C. Mr. Shenkman, a registered investmentadviser, CPA and tax and estates and trusts attorney,discussed the complications that ownership of realestate in life estates, trusts and LLCs can cause fromboth a tax-planning and a trust-and-estates perspec-tive. Pictured with Mr. Shenkman are Elaine M.Harrison, co-chair, Estates, Trusts and Surrogate’s CourtSection, and Leo Genn, chair, Real Property Section.

Hon. Harold Baer Jr., U.S. District Judge, SouthernDistrict of New York, was the guest speaker at the FederalCourts Committee’s April meeting. Judge Baer served asthe judicial executive at JAMS from 1992 until hisappointment to the bench in 1994 and presently servesas chair of the Mediation Committee of the SouthernDistrict Judicial Conference. He discussed two topics: theneed for the development and funding of prison rehabili-tation programs for the federal prison system and issuesrelating to the Southern District mediation program.

Regarding prison rehabilitation programs, Judge Baer dis-cussed programs undertaken in New York City. Heexpressed some caution about the programs’ effectiveness,but was open to improvements and expansion in appropriatecases. Judge Baer circulated a reprint of an article written byhimself and Arminda B. Bepko, A Necessary and ProperRole for Federal Courts in Prison Reform: The Benjamin v.Malcolm Consent Decrees, 52 New York Law School LawReview 3 (2007-2008), which discussed the issue.

The article is dedicated to Hon. Morris E. Lasker, SeniorJudge, U. S. District Court, Southern District, who fordecades handled the Benjamin v. Malcolm prisoners’ rightslitigation and its consent decrees. Judge Baer inherited thislitigation when Judge Lasker went to Massachusetts as asenior judge. There was a discussion about the article, whichexplained that while the federal courts may not be the mostideally suited or cost-effective institutions to monitor prisonreform, they have and must exercise their legitimate role inthat regard when there is a controversy properly broughtand when the other branches have effectively defaulted.

Pictured from left to right are: Stewart D. Aaron, NYCLABoard member and a partner at Arnold & Porter LLP, who

hosted the meeting; Hon. Harold Baer Jr., U.S. DistrictJudge, Southern District of New York; and Thomas V.Marino, chair of the Federal Courts Committee and a

partner at Dunnington Bartholow & Miller LLP.

Hon. Harold Baer Jr. speaks at Federal Courts Committee meeting

NYCLA co-sponsors Speed Networkingand Rainmaking Skills Workshop, Part 2

In April, NYCLA’s Justice Centerhosted a workshop as part of itsYouth Law Education Project forparent coordinators of New YorkCity high schools on variousaspects of criminal, housing, con-sumer credit and family law.There was also a presentation onthe use of NYCLA’s NYC YouthLaw Manual, a 113-page bookdesigned to educate high schoolstudents about their rights andresponsibilities as citizens andprovide information about law-

related careers. The NYCLA mem-bers who participated were (pic-tured): Marie A. Richardson,member of the NYCLA JusticeCenter Advisory Board, and BrianD. Rauer, former chair ofNYCLA’s Cyberspace LawCommittee. Additional presen-ters were: Maxine A. Ketcher, co-chair, NYCLA’s Family Court andChild Welfare Committee, andCollin D. Bull, chair, NYCLA’sCivil Rights and LibertiesCommittee.

NYCLA Justice Center hosts workshopon Youth Law Education

P A S T E V E N T S

M a y 2 0 0 8 / N e w Y o r k C o u n t y L a w y e r 9

by Nicole Pierski

In the fall of 1907, a group oflawyers gathered to address theprospect of forming a bar groupwhere neither heritage nor politicswould be obstacles to inclusion.They were determined to create, inthe words of Hon. Joseph H. Choate(who would become NYCLA’spresident in 1912), “the great demo-cratic bar association of the City[where] any attorney who had metthe rigid standards set up by law foradmission to the bar should, byvirtue of that circumstance, be eli-gible for admission.” The New YorkCounty Lawyers’ Association wasofficially incorporated on April 21,1908 by 143 “attorneys or counsel-lors of the Supreme Court of theState of New York in active prac-tice, residing or having offices inNew York County.” NYCLA’s firsthome was at 165 Broadway, on the26th floor of the City InvestingBuilding.

On January 20, 1908, the followingmembers were elected as officers protempore of the Committee onOrganization. Upon NYCLA’s incor-poration three months later, theywere elected as the first officers of theAssociation.

John Forrest DillonFirst President

John Forrest Dillon originallystudied medicine at the Universityof Iowa but switched to law and wasadmitted to practice in Iowa in 1852.He served as an Iowa state judgeand was appointed to the U.S. Courtof Appeals for the Eighth Circuit in1869. After presiding on that benchfor ten years, he became a Columbia

Law School pro-fessor and latertaught at YaleUniversity LawSchool. He servedas president of theAmerican BarAssociation from1891 to 1892. Mr.Dillon was amunicipal government law expertand the creator of “Dillon’s Rule,”which states that the powers ofmunicipalities are limited to thoseexpressly conferred on them by thestates. That principle has served as atool for reformers and good govern-ment groups to fight municipal cor-ruption in the state legislature andcourt system. He was NYCLA’s firstpresident from 1908 to 1909 andserved on the Board of Directorsfrom 1909 to 1913.

Joseph Francis DalyVice President

Joseph Francis Daly became ajudge at the age of 29, serving on theCourt of Common Pleas and eventu-ally becoming chief justice of thatcourt. In 1896, that court becamepart of the New York SupremeCourt and Judge Daly assumed aposition on that bench. He served onthe Supreme Court until he wasdefeated by a Tammany Hall candi-date in 1898. He was a vice presidentof NYCLA from 1908 to 1912, aswell as from 1915 to 1916.

Alton Brooks ParkerVice President and Second President

Alton Brooks Parker became the sur-rogate of Ulster County in 1877 and in

1886, was appointedto fill a vacancy onthe New YorkSupreme Court. Hewas later electedchief judge of theCourt of Appeals butresigned from thatpost in 1904 in orderto run for U.S. presi-dent against Theodore Roosevelt. Heserved as president of the American BarAssociation from 1906 to 1907 and pres-ident of the New York State BarAssociation from 1913 to 1914. He wasNYCLA’s vice president for a short timein 1908 and served as its second presi-dent from 1909 to 1912.

Charles StraussFirst Secretary and Ninth President

Charles Strauss lived in Manhattanhis entire life, graduating from ColumbiaLaw School in 1875. He served on theCity’s Water Board and was a memberof the committee charged with selectinga new courthouse site. He was also atrustee of City College and director ofthe Underwood Typewriter Company,located at the time at 30 Vesey Street.Charles Boston, NYCLA presidentfrom 1932 to 1934, described Mr.Strauss’s role in the formation ofNYCLA as “the Godfather of thisenterprise.” He was NYCLA’s first sec-retary as well as the secretary ofNYCLA’s Committee on Organization.Mr. Strauss was NYCLA’s presidentfrom 1921 to 1923. When his term aspresident ended in 1923, the Associationelected him to a three-year term to theBoard of Directors in the class of 1926.He was reelected three times as adirector and died before completing hisfinal term in the class of 1934.

Denis A. SpellissyFirst Treasurer

Denis A. Spellissy served asNYCLA’s first treasurer from 1908 to1909 and was a member of theNominations Committee in 1917.When Edward Grout became trea-surer in 1909, he was elected to takeMr. Grout’s place as a director. Heserved on NYCLA’s Board ofDirectors until 1912, the LegislativeCommittee from 1909 to 1915 and theNominations Committee from 1914to 1916.

William James WallaceVice President

William James Wallace was one ofthe first three vice presidents of theAssociation and presided at thedinner that honored DavidLeventritt’s retirement from thebench in 1908. He was appointed aU.S. District judge for the NorthernDistrict of New York in 1874 and tothe Second Circuit in 1882. While sit-ting on the Court of Appeals for theSecond Circuit in 1897, he ran as theRepublican candidate for chief judgeof the New York Court of Appeals,but he lost to the Democrat candi-date, Alton B. Parker. In 1907, heresigned from the bench and returnedto practice. In 1908, he, Parker andJoseph F. Daly were the three vicepresidents of NYCLA during John F.Dillon’s term as president.

Ms. Pierski is the CommunicationsAssistant at the New York CountyLawyers’ Association.

Remembering NYCLA’s original officers

In April, NYCLA’s Library Committee hosteda book-signing reception for the biography BelvaLockwood, The Woman Who Would Be President,by Jill Norgren (pictured), professor emeritus ofgovernment at John Jay College and the GraduateCenter of the City University of New York.Professor Norgren poses with James B. Kobak Jr.,chair of the Library Committee, president of theNYCLA Foundation and vice president ofNYCLA. Her book provides the first in-depthbiography of one of the country’s early womenlawyers, who was the first woman to be admittedto the bar of the U.S. Supreme Court, the firstwoman to argue before that court and a candidatefor the U.S. presidency in 1884 and 1888.

Professor Norgren discussed women cam-

paigners and their use of the media and analyzedthe seriousness with which Ms. Lockwood wastaken by a review of how she was portrayed ineditorial cartoons. In addition to her law practice,Ms. Lockwood was a popular speaker on the lec-ture circuit and also devoted time working onbehalf of the Universal Peace Union.

Professor Norgren’s presentation enlightenedand informed the audience about Ms. Lockwood,the suffrage movement, the practice of law andthe politics and society of the late 19th and early20th centuries.

The event, sponsored by NYCLA’s LibraryCommittee and held during National LibraryWeek, was co-sponsored by the book’s publisher,NYU Press.

Centennial Celebration Event: NYCLA’s Library Committee hosts book-signing reception

Author Jill Norgren and NYCLA Vice President JamesB. Kobak Jr.

John ForrestDillon

Alton BrooksParker

To make suggestions about book purchases,please contact Anna Smallen or Dan Jordanby email at asmallen@nycla.org ordjordan@nycla.org or by phone at 212-267-6646, ext. 204.

FEATURED INTERNET SITEOne-Step Web Pages, by Stephen P. Morse –http://.stevemorse.orgIf you want to find free or low-cost informa-tion about people living or dead, this portal isa good starting point. Though it is primarily forgenealogical research, it provides tools to findbirthdays, telephone numbers, relatives,Holocaust victims and verification of creditcards. Using New York City Vital Records orthe Social Security Death Index, users can sim-plify the ordering of death certificates. Earlycensus records for the United States and infor-mation on ports of entry to New York City canbe found here, as well as incarceration recordsfor New York State. The site can be navigatedvertically or horizontally. ‘One-step’ refers tothe ability to search several databases at once;the information is as reliable as the database

being accessed. There is explanatory materialby Mr. Morse and ancestry.com, which pro-vides some full-text information about migra-tion to the United States and is availablewithout cost at many New York Public Librarybranches.

FEATURED TITLECross-Examination: Science and Techniques,Second Edition, by Larry S. Pozner and RogerS. Dodd. The authors conduct frequent semi-nars on cross-examination. Mr. Pozner is thepast president of the National Association ofTrial Lawyers. His co-author is a trial attorneyand expert on litigation. They begin the bookby giving a systemic overview of the techniquesto employ, then show how to prepare for trialand formulate a strategy. Using examples fromactual trials, but not naming the attorneys, theyprovide methods for writing opening state-ments and cross-examining witnesses withoutprior discovery. They demonstrate effectivestrategies for conducting redirect examinationand impeaching witnesses, for example, thosewho weep or run away with their testimony.

The book concludes with a critical analysis ofsample questions and answers. There is anindex and a 2007 supplement.

NEW EDITIONSBuilding Code of New York State, 2007 edi-tion (International Code Council).Energy Code of New York State, 2007 edition(International Code Council).Federal Civil Judicial Procedure and Rules,March 2008 pamphlet (Thomson West).Federal Criminal Code and Rules, March2008 pamphlet (Thomson West).Federal Sentencing Law and Practice, 2008edition (Thomson West).Fire Code of New York State, 2007 edition(International Code Council).Fuel Gas Code of New York State, 2007 edi-tion (International Code Council).The Law Office Guide to Purchasing LegalMalpractice Insurance, 2008 edition(Thomson West).Mechanical Code of New York State, 2007edition (International Code Council).Plumbing Code of New York State, 2007 edi-tion (International Code Council.Property Maintenance Code of New YorkState, 2007 edition (International CodeCouncil).Residential Code of New York State, 2007 edi-tion (International Code Council).

NEW UPDATESAttorney’s Textbook of Medicine, (LexisNexisMatthew Bender) Release no. 140.Bender’s Federal Practice Forms, (LexisNexisMatthew Bender) Release no. 126A.Bender’s Forms of Discovery, (LexisNexisMatthew Bender) Release no. 77.Bender’s New York Evidence (LexisNexisMatthew Bender) Release no.86.Collier on Bankruptcy (LexisNexis Matthew

Bender) Release no. 76.Employment Coordinator (Thomson West)Release no. 2.Franchising (LexisNexis Matthew Bender)Release no. 110.Law of Electronic Surveillance (ThomsonWest) Release no. 8.Law of Restitution (Aspen Publishers) 2008-2Cumulative Supplement.Moore’s Federal Practice (LexisNexisMatthew Bender) Release no. 157.New York Civil Practice: MatrimonialActions (LexisNexis Matthew Bender)Release no. 73.Proving Medical Diagnosis (LexisNexisMatthew Bender) Release no. 75.

PERIODICALSThe FTC, the Unfairness Doctrine, and DataSecurity Breach Litigation: Has theCommission Gone Too Far? AdministrativeLaw Review, vol. 6 no. 2 (Winter 2008).The Irony of Judicial Elections, Columbia LawReview, vol. 108, no. 2 (March 2008).Katrina’s Window: Localism, Resegregationand Equitable Regionalism, Buffalo LawReview, vol. 55, no 4 (January 2008).The Legal Theory of Competitive Bidding forGovernment Contracts, Public Contract LawJournal, vol. 37, no. 2 (Winter 2008).Nineteenth Annual Supreme Court Review,Touro Law Review, vol. 23, no. 4 (2008).The Progress of Women Lawyers at Big Firms:Steadied or Simply Studied? Fordham LawReview, vol. 76, no. 4 (March 2008).Standing on the Wrong Foot: A Case forEqual Protection, Syracuse Law Review, vol.58, no.1 2007).Valuing Laws as Local Amenities, HarvardLaw Review, vol. 121, no.5 (March 2008).

10 M a y 2 0 0 8 / N e w Y o r k C o u n t y L a w y e r

Manage Your Relationships with Clients, Judges and Opposing Counsel, So That They Don’t Manage You! An analytical and practical approach to anticipate, be prepared for, handle and avoid conflictswith other players in the legal profession. Discussion of problems that attorneys routinely face(including the “unexpected” curve balls) and suggested resolutions. Attendance limited to 20.

May 20, 2008 – 6:00 PMSpeaker: Clyde Eisman

Preparing a Trial NotebookLearn the basics of preparing a trial notebook, issuing subpoenas, jury selection, opening/closingstatements and direct/cross examination. Evidentiary issues including in limine motions, demonstrative evidence and objections will be discussed.

May 27, 2008 – 6:00 PMSpeaker: Jeffrey M. Kimmel

Trial Techniques for BeginnersDetailed discussions concerning trial strategy, witness preparation, jury selection, opening/closingstatements and direct/cross examination. Hearsay objections and other evidentiary issues will bediscussed.

June 3, 2008 -6:00 PMSpeaker: Jeffrey M. Kimmel

What Every Lawyer Needs to Know about The Part 137 Fee Dispute Resolution ProgramYour rights and responsibilities when your client disputes your fees and the law requires that youarbitrate.

June 17, 2008 – 6:00 PMSpeakers: Martin L. Feinberg and Heidi Leibowitz

Great Tips for Building a Successful Practice With over 20 years of experience, Doron provides his top suggestions for buildinga successful solo and small-firm practice. The emphasis is on specific, straightforward, no-holds-barred, practical advice and personal insights.

June 24, 2008 – 6:00 PMSpeaker: Doron Zanani

FREE series for all NYCLA members. All programs are held on Tuesdays from 6:00-8:00 PM at the Home of Law, 14 Vesey St. (between Church Street & Broadway) NewYork. Refreshments are served. To register: email cfragliossi@nycla.org or fax thispage to 212-406-9252. Please check boxes of all programs you wish to attend.

NAME _____________________________________________________________________

EMAIL _____________________________________________________________________

PHONE ____________________________________________________________________

NUMBER YEARS ADMITTED TO BAR _____________________________________

THE PRACTICE OF LAW SERIESPrograms led by experienced attorneys in informal settings to help you

manage your practice.

L I B R A R Y N O T E S

CLE tech programs are listed on page 12.

M a y 2 0 0 8 / N e w Y o r k C o u n t y L a w y e r 11

by Michael S. Brady, Esq. and PamelaMichaels, Esq.

As states and municipalities haveacted to restrict and regulate new con-struction, the value of developmentrights has skyrocketed. In recent years,some states and local governmentshave adopted rules permitting unuseddevelopment rights to be transferred toanother parcel. These developmentrights can then be used to constructimprovements, such as a building withgreater floor space or height thanwould be permitted in the absence ofthose development rights. Accordingly,an owner of excess development rightsmay reap a substantial financial wind-fall by selling the transferable develop-ment rights (“TDRs”) to the owner ofanother parcel who desires to developthe other parcel.

Of course, where there is a potentialgain, there is a potential tax and thequestion arises whether gain resultingfrom a sale of TDRs can be deferredby exchanging TDRs for a fee interestin real property under IRC §1031.More precisely, are TDRs “like-kind”to a fee interest in real property? InPLR 200805012, the Internal RevenueService (“IRS”) addressed that ques-tion squarely. The IRS noted that“[t]he types of property rights andinterests that constitute interests inreal property . . . for purposes of § 1031are broad” and that “[w]hether prop-erty constitutes real or personal prop-erty generally is determined understate or local law.” The IRS then ana-lyzed the two issues commonlyaddressed in a real property like-kindanalysis: (i) the nature of the rightsrepresented by the TDRs (e.g.,whether TDRs constitute an interest inreal property) and (ii) the duration ofthe rights obtained under the TDRs.

In determining whether the TDRsconstituted an interest in real property,the IRS noted that certain tax statutesin the state in which the TDRs werelocated treated TDRs as real property.“Although it is unclear whetherDevelopment Rights are treated asinterests in real property for all pur-poses” of state law, it was clear that sec-tions of the state’s tax statute andregulations “treat Development Rightsas an interest in real property.”Moreover, a local administrativeagency had held that a transfer ofdevelopment rights was subject to stategains tax as a transfer of real property.The IRS also noted that the transfer ofdevelopment rights was subject to realestate transfer taxes imposed by boththe city and state in which the TDRs

were located. Accordingly, the IRSfound that the TDRs in question con-stituted an interest in real propertyunder the state’s laws.

The IRS then considered the durationof the rights obtained under the TDRs,because an interest in real property mustbe of sufficient duration to be consideredto be like kind to a perpetual fee interestin real property. The IRS found that “var-ious sections of the local Ordinancescited by Taxpayer provide thatDevelopment Rights are as-of-right andnot discretionary, meaning that they existpermanently rather than at the discretionof a city agency or other decision-makingauthority. As such, these rights appear tobe analogous to perpetual rights.”

As a final matter, the IRS consideredwhether the taxpayer’s use of the TDRsto benefit a property already owned bythe taxpayer presented a problem in theexchange. Citing Rev. Rul. 68-394, 1968-2C.B. 338, the IRS concluded that “it is notmaterial that the property acquired bythe taxpayer as the replacement propertyis on property already owned by that tax-payer so long as it is acquired in an arm’slength transaction.”

Given the IRS’s analysis above, itappears that a taxpayer could sell devel-opment rights for other like kind realproperty just as easily as the taxpayermight purchase development rights asreplacement property. (See, e.g., PLR8141112, in which exchanger sold agricul-tural land development rights to theState as relinquished property.) Ofcourse, any such transaction should beconsidered only after careful considera-tion of local laws governing TDRs in thejurisdiction in which the taxpayer ownsinvestment property. A taxpayer may notrely on a private letter ruling, so cautionis warranted and competent tax adviceshould be obtained in connection withany such transaction.

Mr. Brady, a NYCLA member, is thevice president of Eastern RegionOperations for Asset Preservation, Inc.Pamela Michaels, Esq. is a vice presidentand the North East division manager forAsset Preservation, Inc., a nationalQualified Intermediary for IRC §1031Tax-deferred Exchanges.

Exchanging property rights

The New York State Unified Court Systemis offering one- and two-year clerkships inthe New York State Supreme CourtCommercial Division beginning September2009. Commercial Division Law Clerkswork directly in chambers assigned to oneof the six justices in the New York CountySupreme Court Commercial Division. Thisprogram seeks individuals with exceptional

qualifications and demonstrated interest incommercial law.

For more information on this program,visit the New York State Unified CourtSystem website at www.nycourts.gov orcontact the Division of Human Resources,Commercial Division ClerkshipCoordinator at 212-428-2515.

The New York State Unified Court Systemis offering one-year Legal Fellowships torecent law school graduates interested inpursuing a legal career in public service.Legal Fellows will be assigned to work injudicial offices, assisting with legalresearch and writing. These assignmentswill offer valuable professional legal expe-rience to new attorneys while alsoexposing them to judicial decision makingand court operations. Fellowship opportu-

nities will be available throughout thestate. Applicants must anticipate gradua-tion from law school by August 2009 orhave graduated no more than three yearsprior to May 2009.

The Legal Fellows Program is coordinatedby the Workforce Diversity Office. For moreinformation, call Alice M. Chapman-Minutello at 212-428-2540 or email her atachapman@courts.state.ny.us.

The New York Law Journal has beenremoved from the LexisNexis service andis only available with a two-week embargoon Westlaw. The NYCLA Library sub-scribes to the New York Law Journal andour librarians will be happy to help youwith your research.

Looking for a case? Can’t find it in yourreporters?

More and more cases are available in theelectronic format only. Please contactNYCLA’s Reference staff to help you findthese often mentioned, yet unpublishedcases, online.

NYS Unified Court System offers clerkships

Legal Fellows Program atNYS Unified Court System

Attention: LitigatorsDesperately Seeking a Case in the New York Law Journal?

May 1-15Wallace Larson212-225-2359

May 16-31Mahendra Ramgopal

646-964-5843

June 1-15Sarah McShea212-679-9090

June 16-30Martin Minkowitz

212-806-6256

ETHICS HOTLINE*

*Questions to the Hotline are limited to an inquiring attorney’s prospective conduct. TheHotline does not answer questions regarding past conduct, the conduct of other attorneys,questions that are being litigated or before a disciplinary committee or ethics committee,or questions of law. This notation shall not be construed to contain all Hotline guidelines.For a full discussion of Ethics Hotline guidelines, please see “Guidelines on NYCLA’sEthics Hotline,” September 2006, New York County Lawyer, Vol. 2, No. 7.

THEATER DISCOUNTSNYCLA members can obtain discounted tickets to the shows listed below.For complete details and ticket regulations, please go to www.nycla.org andlog in with your username and password. Click on Benefits under MembersOnly; go to the dropdown menu and click on Leisure & Retail and scrolldown to Onstagesavings.com.

Jerusalem Chamber Music FestivalNYCLA members receive a 20 percent* discountto the only New York appearance of the Jerusalem Chamber MusicFestival (Israel) on Thursday, May 15 at 8:00 PM at the MetropolitanMuseum of Art. To purchase tickets call 212-570-3949. You must mention codeNYCLA and provide your NYCLA ID number. *Tickets are $40 (regularly $50). Schumann—Six Pieces in Canon Form, Opus 56; Beethoven—Trio for Piano, Clarinet, and Viola, Opus 38; Kurtág—Hommage à Robert Schumann for Piano, Clarinet, and Viola, 1990; Schumann—Quartet in E flat Major, Opus 47.

PamelaMichaels, Esq.

Michael S.Brady, Esq.

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Wednesday, May 1412:00-1:00PMLEXIS: INTELLECTUAL PROP-ERTY 1 MCLE Credit: 1 Skills; TransitionalMember: FreeNon-Member: Free

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Tuesday, May 2010:00-11:00AMWESTLAW: BASIC1 MCLE Credit: 1 Skills; TransitionalMember: FreeNon-Member: Free

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Wednesday, June 1112:00-1:00PMLEXIS: BANKRUPTCY1 MCLE Credit: 1 Skills; TransitionalMember: FreeNon-Member: Free

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From Page 10

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M a y 2 0 0 8 / N e w Y o r k C o u n t y L a w y e r 13

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