February 2013 New York County Lawyer

16
By Louis Newman, Esq. and Briana Denney, Esq. While there are few constants in the realm of matrimonial practice, there is the constant inquiry (or perhaps demand) of the nonmonied spouse of “How much support will I receive?” and the corollary question of the monied spouse of “How much will it cost me?” In an effort to answer these fundamental inquiries with a reasonable degree of certainty, the New York Legislature enacted DRL § 236 (B) (5-a), which establishes specific presump- tions as to both spousal support and coun- sel fees. “[T]he legislative intent of the statute is consistency in maintenance awards.” 1 The legislative Memorandum states the statute is to provide “consisten- cy and predictability in calculating tempo- rary spousal maintenance awards.” 2 Since the October 2010 effective date of the statute, “consistency and predictability” of temporary maintenance has been far from being within the reach of the practi- tioner, much less the parties. The harbin- ger of the statute’s lack of “consistency” and the havoc yet to come is embodied in the very language of the statute. The Legislature, using a phrase we have seen before, authorized the court, upon a find- ing predicated on 17 enumerated factors that the presumptive award is “unjust and inappropriate,” to adjust the presumptive award. This is but the start of the litiga- tion avalanche of pendente lite posturing. With the statutory blessing of being author- ized to make the subjective finding that the presumptive award is “unjust and inappro- priate,” the court returns to the discretionary venue of consideration of the facts of the case. Critical to a deviation from a formula award is the mandate that the court “shall set forth, in a written order, … the factors it considered, and the reasons that the court adjusted the presumptive award of tempo- rary maintenance.” The requirement of a “written order” cannot be waived by coun- sel or the parties. The First Department, in remanding to the motion court a pendente lite order which deviated from a strict application of the formula, implicitly upheld the deviation, but enforced the requirement of a “written order” addressing the factors considered by the motion court. 3 In one of the earliest published decisions involving the temporary mainte- nance statute, Justice Jeffrey Sunshine declared, “The basis of the majority of the deviations enunciated in the statute are dif- ficult to determine pre-trial and pre-discov- ery” with the court being “required to con- sider factors some of which can only be established after a full trial or extensive discovery… at the earliest stage on the litiga- tion.” 4 Consistency and predictability” sure- ly cannot exist under the statutory scheme. Setting Expectations Around Spousal Support DRL § 236 (B) (5-a) –The Uncertainty of Certainty (See Spousal Support on Page 6) NEW YORK COUNTY LAWYER I N S I D E Book Review .................................7 CLE Institute .................................4 Digital Training Center CLEs .....10 EDNY Update ...............................2 E-Newsletter Sins ........................13 Ethics Hotline ..............................15 Library Notes ..............................10 Message from Barbara Moses, NYCLA Foundation President ......6 Message from Stewart D. Aaron, NYCLA President .........................3 Patients’ Rights ............................11 Recent Event Photos .....................8 Spousal Support ............................1 Upcoming Events ..........................9 What’s Tweeting ..........................14 Where the Legal Jobs Are .............1 Workplace Discrimination...........11 Your Data Exposed........................3 TA B L E O F C O N T E N T S February 2013 Visit us at www.nycla.org Volume 7 / Number 19 Where the Legal Jobs Are By Robert Half Legal Which specialty areas are pre- dicted to yield the most prospects for legal job seekers in the year ahead? Almost one- quarter (22 percent) of lawyers recently interviewed by Robert Half Legal expect litigation will generate the greatest number of job opportunities in 2013. Healthcare and general busi- ness/commercial law ranked second, with each practice area receiving 19 percent. Here’s a look at the top practice areas for 2013: Litigation: A surge in corporate and commercial litigation will continue to create demand for associates, paralegals and legal secretaries with litigation expertise, as well as skilled lawyers, JDs, and parale- gals who specialize in e-discovery and document reviews. These experts are not easy to find. Healthcare: Many companies need legal counsel to help them navigate the com- plexities of healthcare reform and comply with recent regulations. In addition, demand for legal professions with this practice area expertise is being generated by companies who specialize in the biotech and medical fields. General business/commercial law: Law firms are hiring associates and paralegals who can guide clients through various types of corporate matters such as con- tract negotiations, mergers, and other tran- sitions. Renewed business activity and ongoing regulatory requirements also are creating demand for experienced in-house attorney and compliance managers. As law firms hire, they will remain sensitive to the needs and requirements of their clients. They will continue to hire selectively, seeking tenured associates and paralegals with in-demand expertise who can immediately contribute to meet- ing client requests for services and renewing their commitment to growth. On the corporate side, legal departments will continue to hire as their volume of work increases and they will expand their internal teams as a way to reduce spending on out- side counsel. Competition will continue to increase for top legal talent as both law firms and legal departments recruit highly skilled specialists from the same talent pool. Many employers are also bolstering their retention efforts to avoid losing valued staff members to other organizations. Robert Half Legal, a division of Robert Half International, places highly skilled professionals, including attorneys, parale- gals and legal support personnel, on a project and full-time basis. Robert Half Legal offers online job search services at www.roberthalflegal.com. Your Data Exposed ...................3 Patients’ Rights .....11 Workplace Discrimination........11

description

Read about “hot” topics in “hot” legal practice areas, and gain insight to assist yourself in learning about emerging topics to help shape your practice.

Transcript of February 2013 New York County Lawyer

Page 1: February 2013 New York County Lawyer

By Louis Newman, Esq. andBriana Denney, Esq.

While there are few constants in therealm of matrimonial practice, there is theconstant inquiry (or perhaps demand) ofthe nonmonied spouse of “How muchsupport will I receive?” and the corollaryquestion of the monied spouse of “Howmuch will it cost me?” In an effort toanswer these fundamental inquiries with areasonable degree of certainty, the NewYork Legislature enacted DRL § 236 (B)(5-a), which establishes specific presump-tions as to both spousal support and coun-sel fees. “[T]he legislative intent of thestatute is consistency in maintenanceawards.”1 The legislative Memorandumstates the statute is to provide “consisten-cy and predictability in calculating tempo-rary spousal maintenance awards.”2 Sincethe October 2010 effective date of thestatute, “consistency and predictability”

of temporary maintenance has been farfrom being within the reach of the practi-tioner, much less the parties. The harbin-ger of the statute’s lack of “consistency”and the havoc yet to come is embodied inthe very language of the statute. TheLegislature, using a phrase we have seenbefore, authorized the court, upon a find-ing predicated on 17 enumerated factorsthat the presumptive award is “unjust andinappropriate,” to adjust the presumptiveaward. This is but the start of the litiga-tion avalanche of pendente lite posturing.

With the statutory blessing of being author-ized to make the subjective finding that thepresumptive award is “unjust and inappro-priate,” the court returns to the discretionaryvenue of consideration of the facts of thecase. Critical to a deviation from a formulaaward is the mandate that the court “shallset forth, in a written order, … the factors itconsidered, and the reasons that the court

adjusted the presumptive award of tempo-rary maintenance.” The requirement of a“written order” cannot be waived by coun-sel or the parties. The First Department, inremanding to the motion court a pendentelite order which deviated from a strictapplication of the formula, implicitlyupheld the deviation, but enforced therequirement of a “written order” addressingthe factors considered by the motioncourt.3 In one of the earliest publisheddecisions involving the temporary mainte-nance statute, Justice Jeffrey Sunshinedeclared, “The basis of the majority of thedeviations enunciated in the statute are dif-ficult to determine pre-trial and pre-discov-ery” with the court being “required to con-sider factors some of which can only beestablished after a full trial or extensivediscovery… at the earliest stage on the litiga-tion.”4 Consistency and predictability” sure-ly cannot exist under the statutory scheme.

Setting Expectations Around Spousal SupportDRL § 236 (B) (5-a) –The Uncertainty of Certainty

(See Spousal Support on Page 6)

N E W Y O R K

COUNTY LAWYERI N S I D E

Book Review .................................7

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

Digital Training Center CLEs .....10

EDNY Update ...............................2

E-Newsletter Sins ........................13

Ethics Hotline..............................15

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

Message from Barbara Moses,NYCLA Foundation President ......6

Message from Stewart D. Aaron,NYCLA President .........................3

Patients’ Rights............................11

Recent Event Photos .....................8

Spousal Support ............................1

Upcoming Events ..........................9

What’s Tweeting..........................14

Where the Legal Jobs Are .............1

Workplace Discrimination...........11

Your Data Exposed........................3

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

February 2013 Visit us at www.nycla.org Volume 7 / Number 19

Where the Legal Jobs AreBy Robert Half Legal

Which specialty areas are pre-dicted to yield the mostprospects for legal job seekers inthe year ahead? Almost one-quarter (22 percent) of lawyersrecently interviewed by RobertHalf Legal expect litigation willgenerate the greatest number ofjob opportunities in 2013.Healthcare and general busi-ness/commercial law rankedsecond, with each practice areareceiving 19 percent.

Here’s a look at the top practiceareas for 2013:

Litigation: A surge in corporateand commercial litigation willcontinue to create demand forassociates, paralegals and legalsecretaries with litigation expertise, aswell as skilled lawyers, JDs, and parale-gals who specialize in e-discovery anddocument reviews. These experts are noteasy to find.

Healthcare: Many companies need legalcounsel to help them navigate the com-plexities of healthcare reform and complywith recent regulations. In addition,demand for legal professions with thispractice area expertise is being generated

by companies who specialize in thebiotech and medical fields.

General business/commercial law: Lawfirms are hiring associates and paralegalswho can guide clients through varioustypes of corporate matters such as con-tract negotiations, mergers, and other tran-sitions. Renewed business activity andongoing regulatory requirements also arecreating demand for experienced in-houseattorney and compliance managers.

As law firms hire, they willremain sensitive to the needsand requirements of theirclients. They will continue tohire selectively, seeking tenuredassociates and paralegals within-demand expertise who canimmediately contribute to meet-ing client requests for servicesand renewing their commitmentto growth. On the corporateside, legal departments willcontinue to hire as their volumeof work increases and they willexpand their internal teams as away to reduce spending on out-side counsel.

Competition will continue toincrease for top legal talent asboth law firms and legaldepartments recruit highlyskilled specialists from the

same talent pool. Many employers arealso bolstering their retention efforts toavoid losing valued staff members toother organizations.

Robert Half Legal, a division of RobertHalf International, places highly skilledprofessionals, including attorneys, parale-gals and legal support personnel, on aproject and full-time basis. Robert HalfLegal offers online job search services atwww.roberthalflegal.com.

Your DataExposed ...................3

Patients’ Rights .....11

WorkplaceDiscrimination........11

Page 2: February 2013 New York County Lawyer

February 2013 / The New York County Lawyer2

By Vincent T. Chang

The Eastern District of New York(EDNY), like the entire federal judiciary,faces severe budget constraints. Evenwithout the draconian budget cuts thatwould be triggered by sequestration andthe “fiscal cliff”—a threat which willrecur in a matter of months—the EDNYfaces an increasing workload withdecreasing resources. Despite these chal-lenges, the EDNY has managed its dock-et efficiently and has unveiled innova-tions designed to ensure that the Courtnot only weathers the current fiscal crisis,but improves the administration of jus-tice.1 However, these steps would beinsufficient to cope with the crisis thatsequestration would trigger, and thebench and bar should continue to be vigi-lant in monitoring the legislative situa-tion and opposing the threat that seques-tration would pose.

Throughout its history, despite a popula-tion and docket that are among thenation’s largest, the EDNY has workedwith a group of judges much smaller thanthat in the Southern District of New York(SDNY). Today, the EDNY has 15authorized district judges to serve 8 mil-lion people, with one position unfilled.These judges are ably assisted by 12 sen-ior district judges, 15 magistrate judges,one recall magistrate judge and sevenbankruptcy judges. In FY2012, theEDNY’s case load grew, with pro se fil-ings increasing from 19 percent to 23percent of the total civil case load. Non-pro se civil filings are up two percent.

Cost containmentEDNY Chief Judge Carol Amon serveson the Judicial Conference as one of theSecond Circuit’s representatives and hasoften had to cope with difficult budgetaryissues. For example, over the objectionsof Chief Judge Amon and Second CircuitChief Judge Dennis Jacobs, the District ofVermont was forced to cut its only pro seclerk. Even without sequestration, suchsacrifices may become commonplace. InFebruary 2013, each court in the Circuitmust present to Chief Judge Jacobs itsplan for shared administrative services.

In the EDNY, FY 2013 allotments willlikely assume that final FY2013 appropri-ations will approximate those of FY2012,which would translate to a shortfall of$239 million nationwide and $1.4 millionfor the EDNY. Such a budget wouldresult in a 10.4 percent cut in Clerk’sOffice staff salaries and allotments forexpenses, such as IT, supplies, operationalcosts, overtime, and utilities. The portionof the U.S. Courts’ budget that is “manda-tory” is growing each year, and so morecuts in “discretionary” expenditures (i.e.,staff, facilities maintenance and expenses)will be required. In the EDNY Clerk’sOffice, 17 out of 177 positions could becut. However, because 77 of the 177 posi-tions are mandatory and cannot be cut, allcuts must be concentrated in the remain-ing 100 positions. This yields an effective17 percent cut in operations staff, mainlyfrom administrative services and opera-tions, including intake, docket staff, cov-erage, IT, human resources, procurement,jury, administrative staff, and finance.

Fortunately, over the past year, theEDNY has reduced its expenses and per-sonnel payroll so that the expected $1.4million shortage has been reduced toabout $490,000. The EDNY hopes torecover that amount through the redirec-tion of funds from IT to personnel. As aresult, the District should be able toavoid layoffs and furloughs in FY2013.

This relatively optimistic scenario wouldnot occur if automatic fiscal cliff/seques-tration cuts are triggered. The recentDecember 31, 2012 budget deal has onlybeen deferred for several months and hasnot eliminated the prospect of such cuts.If such cuts are triggered, the entire fed-eral judicial budget could be cut by near-ly $400 million, with the EDNY suffer-ing potentially another 8 percent cut inFY2013, meaning a total cut of at least16.5 percent. At that level, the EDNYwould have to shed about 20 positionsand potentially furlough all staff for 12days during the fiscal year. There wouldbe insufficient personnel to staff thecounters in both court locations and tocontinue to docket submissions throughthe Clerk’s Office, open cases, andprocess financial transactions. The Courtmight have to close for part of the weekor otherwise limit public hours.

In addition to loss of the Clerk’s Officestaff and the attendant limited availabilityof Clerk’s staff to the public, sequestrationcould potentially result in loss of jurors, asjury fees and expenses would be cut, lossof coverage staff for court events, delayedCJA voucher approvals and payments,delayed payments to vendors, reducedquality control, reduced maintenance ofcourt facilities, reduced maintenance ofcourt information technology, increasederror rates in docketing (possibly affectingspeedy trial, appeals, etc.), increased timefor a document to reach the docket sheetafter filing, increased time to process resti-tution to victims of crime, increased timeto record orders and process judgments,increased error rates in presentencingreports, and possible reduction in publicservices, such as immigration ceremonies.

ProbationThe EDNY’s Probation Department over-sees thousands of federal probationers inthe District. In the last four years, theEDNY’s Probation Department reducedits staff by nearly 30 full time positionsfor a myriad of reasons. Last fiscal yearit mandated four monthly furlough days,reduced staff and salaries through attri-tion, early retirement, and buyouts, andeliminated staff performance stepincreases, promotions, and replacements.They are operating under-staffed in orderto make payroll. Efforts are being madeto further reduce staff through earlyretirement and buyout incentives.However, deep budget cuts may causeadded furlough days and/or staff reduc-tions. With such a reduced staff, theDepartment will likely be required toplace many offenders into administrativecaseloads with less supervision and morerisk to the community.

In the event of sequestration, the proba-tion department would have to signifi-cantly reduce salary costs by the equiva-

lent of 22 more positions. Officers wouldbe forced to handle even more clericalduties and reduce their exceptional workon the “extra” innovative programswhich provide community service and/ordeter, detect and aid in the rehabilitationof convicted offenders. The shortfallscould also reduce the quality and quanti-ty of treatment sessions for offenders.

Pretrial ServicesAnother important security-related func-tion at the EDNY is Pretrial Services.Pretrial Services is currently staffed at only74 percent of its authorized level, with 41employees. The office oversees 1,300annual bail investigations and monitorsover 1,600 defendants under communitysupervision. The average line officer cur-rently conducts 80 to 110 full bail investi-gations annually while simultaneouslysupervising approximately 60 defendants.

Again, sequestration could dramaticallyaffect the investigation and monitoring ofpretrial defendants. Staffing would bereduced from 74 to 60 percent of theauthorized level, and across the boardfurloughs of more than 12 working daysmight be required. As a result, bail inves-tigations would likely take more time andbe less comprehensive, hindering theoffice’s ability to fairly assess eachdefendant’s risk of danger and flight.This could increase the number ofdetainees and thus detention costs. Theoffice could also be required to terminateor reduce services provided to superviseddefendants, including drug and mentalhealth evaluations, sex offender evalua-tions and therapy, house arrest, andworkforce development initiatives.

Sequestration would make it more diffi-cult to detect defendant non-compliance.Management oversight of officers’ com-pliance with policies and procedureswould be reduced, officers would spendless time in the field and would havedecreased training and access to computermonitoring software. Moreover, innova-tive programs which offer intense supervi-sion and rehabilitation services to defen-dants would also be adversely impacted.Together, these effects could result inheightened danger to the community.

Innovative ProgramsDespite budget constraints, the EDNYparticipates in several innovative pro-grams. It is one of 14 courts participatingin the 10-year Patent Pilot Program. Sixdistrict judges and nine magistrate judges

participate in the program. Since itsunveiling on February 2, 2012, more thanhalf of the patent cases filed in theDistrict have gone into the program. TheEDNY Board of Judges has adopted localpatent rules, which have been publishedfor comment.

Other new EDNY initiatives include thePerimeter Project to provide a secure andsafe perimeter for the courthouse, publicInternet access throughout the courthouse,and an e-mail document filing system.

The EDNY also looked at two SDNY pro-grams, but did not adopt them. TheEDNY’s Committee on Civil Litigationrecommended against adoption of theSDNY’s “Pilot Project Regarding CaseManagement Techniques for ComplexCivil Cases”because the EDNYCommitteedid not perceive a similar need for a set ofuniform procedures in complex civil cases,and because the SDNY’s Project might yetbe modified or discontinued once it isevaluated. The Committee recommended,however, that individual judges review thisprogram with an eye to possibly incorpo-rating parts of the program in judges’ indi-vidual practices.

The Committee also reviewed theSDNY’s pilot “Plan for Certain § 1983Cases Against the City of New York,”which is intended to encourage early set-tlement of certain cases filed againstemployees of the New York City PoliceDepartment under 42 U.S.C. § 1983.Again, this plan has not been evaluated bythe SDNY. The EDNY Committee onCivil Litigation has concluded that theEDNY does not need such a plan, asEDNYmagistrate judges actively manage§ 1983 cases, and the EDNY settledroughly the same percentage of cases asthe SDNY during the first fiscal year ofthe SDNY’s pilot plan.

Vincent T. Chang is the Chair of NYCLA’sFederal Courts Committee, a member ofNYCLA’s Executive Committee and Boardof Directors, and the Chair of the NYCLAFoundation. A graduate of HarvardCollege and Harvard Law School, Mr.Chang is a litigation partner at WollmuthMaher & Deutsch.

State of the Eastern District of New York

TO ADVERTISE IN THENEW YORK COUNTY LAWYER

CALL 631-427-7000

The proposed no-growth budget sub-mitted for the New York State judiciaryis a stark reminder of the current eco-nomic and political climate. Weapplaud Chief Judge Lippman, ChiefAdministrative Judge Prudenti, and theOffice of Court Administration for theiradept handling of the judicial budget inthese time of fiscal constraints. We alsoapplaud the Chief Judge for the addi-tional $15 million he allocated in theproposed budget toward providing civillegal services to low-income NewYorkers. We call upon the Legislatureto approve the proposed budget.

Nevertheless, as NYCLA’s TaskForce on Judicial Budget Cutsobserved during the course of itswork that began after the judicialbudget was slashed by $170 millionin 2011, the cuts came with costs interms of access to justice. We urgethat, as promptly as possible, a sub-stantial portion of the budget cuts berestored so that access to justice canbe increased for all New Yorkers.The judiciary is a separate and inde-pendent branch of governmentdeserving of adequate resources tocarry out its mandate.

Statement from NYCLA President Stewart D. Aaronon Proposed 2013-2014 Budget for

New York State Judiciary

We acknowledge the extensive and gen-erous assistance of EDNYChief JudgeCarolAmon, her judicial clerk MichelleBanker, and of the EDNY’s departmen-tal staff in producing this article.

Page 3: February 2013 New York County Lawyer

February 2013 / The New York County Lawyer 3

By Jane Chuang, Esq.

The explosive growth of digital dataavailable and the ease with which it canbe shared over the Internet has put thespotlight on data privacy law. For exam-ple, what happens when a popular e-mailprovider automatically signs up its usersfor its social networking site and revealsthe names and e-mails of its users’ mostfrequent contacts to others?1 Or when ahard drive containing medical recordsand social security numbers is lost onthe train?2 Or when location-based datais published on a site calledPleaseRobMe.com to indicate whensomeone is not at home?3 Or when aphoto-sharing website changes its priva-cy policy to allow it to use photographsfor advertising purposes without firstnotifying the owner?4 All of theseinstances raise concerns about one’scontrol over one’s own personal data andthe security of such data.

Unlike most other developed countries,the United States does not have a com-prehensive privacy law. Rather, it uses apatchwork of federal laws governingparticular industries. For example, theHealth Insurance Portability andAccountability Act of 1996 (HIPAA)requires covered healthcare entities tosafeguard and limit access to medicalrecords.5 The Gramm-Leach-BlileyFinancial Modernization Act of 1999requires financial institutions to notifyconsumers about their data sharing prac-tices and to protect sensitive data.6 TheChildren’s Online Privacy Protection Actregulates operators of websites andonline services directed at childrenunder the age of 13 and requires parentalnotification and consent before collect-ing information from children.7

In addition, the Federal TradeCommission (FTC) regulates data pri-vacy based on its authority to prohibitunfair or deceptive acts or practicesunder Section 5(a) of the FTC Act.8 For

example, in 2012, the FTC settled aclaim against Google for placing adver-tising tracking cookies on the comput-ers of Apple Safari browser users whohad opted out of tracking in violation ofa previous consent order. Googleagreed to pay a $22.5 million penalty.9

This followed in the footsteps of anearlier FTC complaint against Googlefor using deceptive practices and violat-ing its own privacy policy when itlaunched its social networking site,Google Buzz, in 2010.10 According tothat complaint, Google led its Gmailusers to believe that they could choosewhether or not to join Google Buzz,when in fact the users were not giveneffective options to opt out of the net-work and were not provided with aclear way to limit the sharing of theirpersonal information. Further, Googledid not inform users that their frequente-mail contacts would automaticallybecome public. This feature in particu-lar led to backlash from many users,who pointed out that e-mail contactscould reveal sensitive information suchas medical providers or illicit affairs, orthe contacts of political activists incountries such as China, or could evenreveal information about the user toformer abusers or stalkers.11

Further, Google’s privacy policy hadindicated that it would not use personalinformation in a manner that was differ-ent than the purpose for which it wascollected without consent; however, itused information provided for Gmailfor Google Buzz without asking forpermission first. To settle the GoogleBuzz complaint, Google agreed toimplement a comprehensive privacyprogram and submit to regular inde-pendent privacy audits for 20 years.12While Google was the first to agree tosuch a privacy program as part of anFTC settlement, the FTC has alsoobtained agreements from other compa-nies such as Facebook and MySpace to

establish similar privacy programs aspart of their settlements of FTC com-plaints.13Along with existing federal laws andFTC enforcement, a number of stateshave also passed data privacy laws. Onenotable example is California, whichenacted its Online Privacy ProtectionAct14 in 2003. The Act requires any web-site that collects “personally identifiableinformation” such as a name, e-mailaddress, phone number, or SocialSecurity number to have a privacy policyconspicuously posted on website. Thepolicy must describe what categories ofinformation that is being collected, whatentities may have access to the informa-tion, and how a user can review andrequest changes to his or her information.Penalties are assessed if a company vio-lates its own posted policy. Since theCalifornia law applies to any websiteused by California residents, it effective-ly applies to just about any website onthe Internet.

In contrast to the United States’ morescattershot approach, Europe has a com-prehensive data protection policy calledthe European Union Data ProtectionDirective. Under the E.U. framework,privacy and protection of personal datais a fundamental right.15 Consumershave a right to know who holds andcontrols their data, and why, and alsohave a right to correct inaccurate data,and to withhold permission for usingtheir data in certain situations. Transfersof personal data from within the E.U. tooutside of the E.U. must meet certainstandards to comply with the directive.As a result, U.S. companies doing busi-ness with or attracting European con-sumers should be aware of the morestringent E.U. privacy standards.

While many in the U.S. have called formore comprehensive data privacy laws,so far such laws have not been enacted.Holes in the U.S. framework can pose

Your Data, Exposed

Dear Readers:

There is an increasing demand forlawyers in certain practice areas of thelegal industry, with many legal profes-sionals specializing in particular practiceareas. This issue of the New York CountyLawyer is the first in our two-part serieson “hot” topics in “hot” legal practiceareas, and provides insights to assist youin learning about emerging topics to helpshape your practice.

According to the American BarAssociation’s What’s Hot and What’s Notin the Legal Profession Trends Report,one such “hot” practice area is healthcare. In a story on page 11, a member ofNYCLA’s Health Law Committee coversbasic employment rights and advice forcancer patients, a “hot topic” in this “hot”practice area. According to the author,“Unfortunately for many, the reality isthat even with leave afforded under theFamily Medical Leave Act patients mayneed to work through part or all of theirbattle with cancer in order to maintaintheir employment, health insurance, andincome. To add insult to injury, manycancer patients face discrimination in theworkplace that can be intolerable or even

lead to termination, whether legal or not.”Looking to break into this area? Read onbelow and learn how lawyers can counselclients with cancer to make the experi-ence more bearable and in turn help themavoid certain pitfalls in the workplace.

Meanwhile, the matrimonial practicearea is another that has experiencedgrowth in recent years. On the cover ofthis issue, NYCLA’s MatrimonialSection Co-Chair Briana Denney and herbusiness partner, Louis Newman, coverhow to set expectations around spousalsupport. They address the questions mat-rimonial attorneys hear from clients onthis topic and DRL § 236(B)(5-a), enact-

ed by the New York State legislature,which establishes specific presumptionsas to both spousal support and counselfees. Another emerging topic in matrimo-nial practice is same-sex marriage, withimportant U.S. Supreme Court argumentson this issue happening in March. InDecember, at the 2012 NYCLAAnnualDinner, the New York legal communitycelebrated LGBT equality and honoredcorporations and law firms that havedemonstrated a commitment to LGBTequality. Flip to page 8 to see photosfrom this very special event.

Other practice areas in demand for legalprofessionals include international law,banking and intellectual property. Staytuned for more on hot topics in theseindustries in next month’s issue. In themeanwhile, Tweet me @NYCLAPres andshare what “hot” practices you are notic-ing in the legal world and what “hot” top-ics you see emerging.

Stewart D. AaronPresidentNew York County Lawyers’Association

Stewart D. AaronPresident, New York County

Lawyers’Association

NewYork County Lawyer is published

monthly (except January andAugust) for

$10 per year by NewYork County Lawyers’

Association, 14Vesey Street, NewYork, NY

10007. Periodicals postage paid is mailed at

NewYork, NY and additional mailing

offices. POSTMASTER: Send address

changes to: NewYork County Lawyer, 14

Vesey Street, NewYork, NY 10007-2992.

USPS #022-995

ISSN: 1558-5786

$10.00 of membership dues is deducted for a

one-year subscription to the NewYork

County Lawyer.

Copyright © 2013 NewYork CountyLawyers’Association. All rightsreserved. NewYork County Lawyers’Association grants permission forarticles and other material herein orportions thereof to be reproduced anddistributed for educational or profes-sional use through direct contact withclients, prospective clients, profes-sional colleagues and students pro-vided that such use shall not involveany matter for which payment (otherthan legal fees or tuition) is madeand provided further that all repro-ductions include the name of theauthor of the article, the copyrightnotice(s) included in the originalpublication, and a notice indicatingthe name and date of the Associationpublication from which the reprint ismade. Subscription rate: $10.00 peryear for non-members

New York County Lawyer ispublished by

Long Islander Newspapersunder the auspices of

the New York County Lawyers’Association. For advertisinginformation, call 631-427-7000.

Mailing address: 149 Main Street,Huntington, NY 11743.

Photo Credits

Marian Goldman

National Association of CriminalDefense Lawyers

Rick Kopstein

NEW YORK

COUNTY LAWYER

Stewart D. AaronPresident

Sophia J GianacoplosExecutive Director

Toni ValentiDirector of Marketing andMembership Development

Ariella GreenbaumEditor

Senior Communications andSocial Media Manager

(See Your Data Exposed on Page 12)

Page 4: February 2013 New York County Lawyer

February 2013 / The New York County Lawyer4

Join Program Chairs Olivera Medenica,Wahab & Medenica LLC and FrancesHadfield, Grunfeld Desiderio LebowitzSilverman & Klestadt LLP andNYCLA’s Entertainment IntellectualProperty and Sports Section on Friday,February 8 for an all-day program,Down the Runway: A Day of FashionLaw.

An extraordinary panel of attorneys andgeneral counsel from some of the fashionindustry’s biggest names will discuss themyriad of issues arising when represent-ing a fashion client.

• PANEL I - The BusinessFoundation: The essentials of com-pany formation, and growth throughfinancing vehicles such as privateplacements (debt and equity offer-ings).

• PANEL II – The Business ofFashion: Commercial agreements inthe fashion industry, e.g., those withdepartment stores and licensingagents.

• PANEL III – Classifications, Value,Labeling and Border ControlIssues: Importation of goods into theU.S.

• PANEL IV – Intellectual Property:The extent to which intellectualproperty does or does not cover fash-ion apparel, anti-counterfeitingstrategies.

• PANELV – Brand Building:Growing a brand through licensing,as well as basic IP protection consid-erations when expanding a brandinto another country.

• PANELVI – Talent, Advertisingand Web 3.0: Talent agreements, andthe regulatory framework governingadvertising and promoting a brand.

NYCLA’s Insurance Law Committeeand Nelson, Levine deLuca &Hamilton will co-sponsor HurricaneSandy: Insurance Coverage Disputesand Regulatory Issues on Thursdayevening, February 7. Insurance compa-nies have been impacted by hundreds ofthousands of claims arising from monsterstorm Sandy, all of which have to beadjusted and some of which will result indisputes between insurers and their poli-cyholders. Further, regulatory changesimposed in Sandy’s wake significantlyimpact this process. Hear presentationsby insurance industry experts on keyissues relating to the storm and its impacton the insurance industry and policyhold-ers, and an insurance company executivewho will speak to the effect of the stormon an insurer:

• Insurance Coverage Disputes froman Insurer’s Perspective: StevenNassi, Partner, Nelson LevinedeLuca & Hamilton

• Regulatory Issues Arising fromSandy: James Veach, Partner,Mound Cotton Wollan & Greengrass

• Insurance Coverage Disputes froma Policyholder’s Perspective:Jeffrey Schulman, Partner, DicksteinShapiro, LLP

In the wake of the Arab Spring andAmerican Autumn protests of 2011, publicprotest actions are becoming increasinglycommon, and attorneys are increasinglybeing sought out by individuals andorganizations to assist in these protestactions, whether in securing permitting,observing police interactions, or defendingarrested protesters. Join NYCLA’s CivilRights & Liberties Committee and apanel of seasoned practitioners onFebruary 22 for Protest Lawyering:Theory and Practice. Explore the rele-vant laws and practices that mediate anddefine first amendment protected protest

activities, and learn the tricks of the tradethat enable attorneys to preserve and pro-tect protesters’ rights.

Late January andFebruary Programs

How to Handle a Wage and Hour CaseThursday, January 31 - 9 p.m.3 MCLE Credits: 1 Ethics; 1 Skills; 1 PP;Transitional and Non-transitional

Advice from the Bench: Practice Tipsfor Young LawyersThursday, January 31 - 7-8:40 p.m.2 MCLE Credits: 1 Ethics; 1 PP/LPM;Transitional and Non-transitional

Build Your Practice the Logical WayTuesday, February 5 - 5:30-9 p.m.4 MCLE Credits: 1 Ethics; 2 Skills; 1 PP;Transitional and Non-transitional

The New Form of Owner’s Rider tothe Standard Agreement BetweenOwner and Contractor (AIADocument A107)Thursday, February 7 - 6-7:45p.m.2 MCLE Credits: 2 PP; Transitional andNon-transitional

Hurricane Sandy: Insurance CoverageDisputes and Regulatory IssuesThursday, February 7 - 6-8 p.m.2 MCLE Credits: 2 PP; Transitional andNon-transitional

Down the Runway: A Day of FashionLawFriday, February 8 - 9 a.m.-5 p.m.8 NY MCLE Credits: 5 PP/LPM; 3Skills; Transitional and Non-transitional

Anatomy of a DepositionTuesday, February 12 - 6-9 p.m.3 MCLE Credits: 3 Skills; Transitionaland Non-transitional

Property Insurance in the City:Learning From SandyWednesday, February 13 - 9 a.m.-noon3 MCLE Credits: Breakdown TBD

A Lawyer’s Guide to Medical Records:Understanding the Story They Tell andHow to Use ThemWednesday, February 13 - 6-8:30 p.m.2.5 MCLE Credits: 1 Skills; 1.5 PP;Transitional and Non-transitional

Protest Lawyering: Theory andPracticeFriday, February 22 - 9 a.m.-5 p.m.8 MCLE Credits: 3 Ethics; 2 Skills; 3 PP;Transitional and Non-transitional

Please note that Tuition Assistance isavailable for qualified attorneys for liveprograms offered by the CLE Institute.Check our website at www.nycla.org formore information and how to apply forTuition Assistance. Check our website forcourse details, faculty, complete programdescriptions and pricing.

Be sure to check our website for a com-plete listing of programs.

Programs on Topical Issues This February

CLE INSTITUTE

All NYCLA’s CLE Institutecourses now available for NewJersey MCLE Credit

New York County Lawyers’Association’s CLE Institute is cur-rently certified as an AccreditedProvider of continuing legal educa-tion in the State New Jersey.

NYCLA’s CLE Institute nowApproved as a Provider ofContinuing ProfessionalEducation for accountants andCPAs. Check our website atwww.nycla.org for applicablecourses.

Page 5: February 2013 New York County Lawyer

February 2013 / The New York County Lawyer 5

Page 6: February 2013 New York County Lawyer

February 2013 / The New York County Lawyer6

Dear Friends:

In my capacity as President of the NewYork County Lawyers’AssociationFoundation, I have frequently used thisspace to ask NYCLA members to sup-port our programs and services withdonations to the Foundation. This month,I want to use the same space to thankyou for responding generously through-out 2012, and to tell you a little bit aboutwhat the Foundation is able to do withyour donations.

Thanks to the generosity of NYCLA’smembers and supporters, we raisedapproximately $173,000 in 2012, includ-ing almost $65,000 donated to theFoundation’s Second Century Fund,which supports all of NYCLA’s programsand services. In addition, we receivedgenerous contributions earmarked forspecific programs, such the MinorityJudicial Internship Program, ProjectRestore, and the U.S. Tax Court pro bonoprogram. The Minority Judicial

Internship Program, established byNYCLA Past President Hon. Harold BaerJr. and his wife, Dr. Suzanne Baer, givesminority law students the opportunity tocomplement their studies with paid sum-mer judicial internships in the chambersof federal and state judges around NewYork City. Through Project Restore,NYCLA volunteers provide pro bonoassistance to ex-offenders who are initial-ly denied vocational licenses by the NewYork Department of State. This unique

program has been highly successful inobtaining the licenses they need to obtainor retain gainful employment, which inturn markedly reduces recidivism. TheU.S. Tax Court pro bono program—thefirst of its kind in the NewYork area—puts NYCLA volunteers in the courtroomduring calendar call sessions, to assistpro se tax court litigants with questionsranging from settlement offers to trialprocedure.

We are pleased to report that 93 percentof our NYCLA board members and 96percent of our Foundation board mem-bers personally contributed as part of our2012 fundraising campaign. We alsoreceived contributions from a wide cross-section of NYCLA members, includinglawyers practicing in large and smallfirms, as solos, in government agencies,as public defenders and prosecutors, andin pro bono organizations. We particular-ly thank former President James B.Kobak, Jr. and Treasurer Carol Sigmondfor their personal generosity.

To show your support for the programsthat make us proud to be members ofNYCLA, you can simply go towww.nycla.org and choose “Giving toNYCLA.” You can also mail a check,payable to the “NYCLA Foundation,” toNYCLA Foundation, 14 Vesey Street,NewYork, NY 10007. We are gratefulfor every contribution and are pleased tosay “thank you” with a selection ofDVDs, books, prints and other gifts,described on our website.

NYCLA needs both your support andyour ideas. Please do not hesitate to con-tact me with suggestions for fundraisingor related topics. You can reach me [email protected].

Sincerely,

Barbara MosesPresident of the NYCLA Foundation

M E S S A G E F R O M B A R B A R A M O S E S , 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

Ida B.Wells-Barnett Justice Award Presented toGeneral Counsel of Consolidated Edison

The New York County Lawyers’Association congratulates ElizabethD. Moore, General Counsel ofConsolidated Edison Company ofNew York, for being selected toreceive the 11th annual Ida B.Wells-Barnett Justice Award. Eachyear NYCLA along with theMetropolitan Black Bar Association(MBBA) presents the Award, namedfor Ms. Wells-Barnett, one of the firstAfrican American women to run forpublic office in the United States, to awoman of color who life reflects her

spirit and courageousness by distin-guishing herself in the right for racialand gender equality.

General Counsel at Con Edison sinceMay 2009, Moore is a former partnerin the firm of Nixon Peabody LLP,where she specialized in publicfinance, employment law, procure-ment policy, and government compli-ance and regulatory issues. She alsoserved for 12 years in the administra-tion of former New York GovernorMario Cuomo, as Counsel to the

Governor from 1991 to 1994. Mooreearned a law degree from St. John’sUniversity and a Bachelor of Sciencefrom the School of Industrial andLabor Relations at Cornell University,where she is a member of the Boardof Trustees.

The 11th annual award presentationwill take place Thursday, February28, at the Home of Law, 14 VeseyStreet, Manhattan at 6 p.m.—NYCLA and MBBA are welcome toR.S.V.P. for the event on nycla.org.

Elizabeth D. Moore, GeneralCounsel of Consolidated EdisonCompany of New York

In determining whether the presump-tive award of maintenance is unjust orinappropriate, the statute mandates theconsideration of the seventeen (17)enumerated factors.5 If the formulaapproach yields an “unjust or inappro-priate” result, the deviation therefrommust be explained in the Court’s writ-ten decision.6 Prior to the enactment ofDRL § 236 (B)(5-a), it was not uncom-mon for pendente lite awards to make aspecific direction with regard to hous-ing costs together with a regular recur-ring monthly payment of a sum certain.Conspicuously absent from the tempo-rary maintenance statute is any mentionor reference to household costs. “Nolanguage in DRL § 236 (B)(5-a) . . .specifically addresses whether thestatutory formulas are intended toinclude the portion of the carryingcosts of their residence attributable tothe nonmonied spouse and the chil-

dren.”7 This failure of the statute toaddress the specifics of householdexpenses and the extent to which childsupport covers any portion of thehousehold expenses created more con-fusion than it did consistency or pre-dictability. With the issuance of a pre-sumptively appropriate temporarymaintenance order determined pursuantto the formulaic approach, the payorspouse was left in a quandary as towhether to continue to pay householdexpenses or simply stop making anysuch payments. With the beginning of2012, the Appellate Division, FirstDepartment, presumably resolved thisdilemma stating, “But, in the absenceof a specific reference to the carryingcharges for the marital residence, weconsider it reasonable and logical toview the formula adopted by the newmaintenance provision as covering allthe spouse’s basic living expenses,including housing costs as well as thecosts of food and clothing and otherusual expenses.”8 Following the FirstDepartment’s construction of the tem-

porary maintenance statute, the SecondDepartment vacated a support orderrequiring the payor spouse to pay bothtemporary maintenance calculated pur-suant to the formula and “100% of cer-tain carrying charges on the maritalresidence.”9 Consistency, maybe.

As a 2013 NewYear’s present, the FirstDepartment, on January 3, 2013, handeddown a Decision which may well con-flict with its holding in Khaira.InNederlander v Nederlander, 2013 WL28258 (1st Dept. 2013), the FirstDepartment affirmed the Motion Court’sdirecting, pursuant to DRL § 234, thedefendant spouse to make mortgage pay-ments on the mortgage secured by themarital residence under the theory thatsuch payments were necessary to “pre-vent dissipation of marital property.”While the Nederlander case was com-menced prior to the effective date of thetemporary maintenance statute, wouldnot the same logic apply in order to pre-serve marital assets in a post temporarymaintenance statute case? Does the

intent of Nederlander do violence toKhaira and Woodford?

Louis Newman, Esq., and Briana Denney,Esq. are partners of Newman & DenneyP.C., a full service matrimonial and fami-ly law firm located in MidtownManhattan. Newman and Denney aremembers of NYCLA and its MatrimonialLaw Section, with Denney serving as Co-Chair.

References:1. Scott M. v Ilona M., 31 Misc.3d 353 (Sup.Ct. Kings Co. 2011); C.K. v M.K., 31Misc.3d 937 (Sup. Ct. Rockland Co. 2011).2. Assembly Mem in Support, 2010McKinney’s Session Laws of NY, at 1943.3. Khaira v Khaira, 93 AD3d 194 (1st Dept.2012).4. Scott M.id.5. DRL§ 236 (B)(5-a)(c)(2).6. DRL § 236 (B)(5-a)(e)(1).7. Khaira, id. at 200.8. Khairaid.9. Woodford v Woodford, 100 AD3d 875(2nd Dept 2012).

Spousal Support(Continued From Page 1)

Page 7: February 2013 New York County Lawyer

February 2013 / The New York County Lawyer 7

By Frank Taddeo, Esq.

De Tocqueville hated abstraction.“Nothing is so unproductive for thehuman mind as an abstract idea,” hewrote. An abstract word he likened to “abox with a false bottom; you may put init what ideas you please and take themout again unobserved.”

Imagine his evaluation of a word like“dignity,” especially in association withlegal rights—a word with no fixed defini-tion, inherently ambiguous at its core,capable of light or indiscriminate inter-pretation, and carrying no philosophicalor political pedigree on the order ofrights on banners at the barricade like,say, liberty, equality, and fraternity. Inantiquity only the privileged enjoyed so-called “dignitas” or respect; Aquinasasserted it powerfully in a religious con-text as an attribute all men share inreflection of God’s image; it was uncou-pled from social hierarchy and applied toindividuals as late as the Renaissance andapplied to the public in general; andeventually it appeared prominently in thework of Immanuel Kant who declared ita legal ideal. For most of modern history,however, it had virtually no status in lawbeyond occasional use as anaromatic-condiment of sorts, sprinkled on deci-sions involving age-old rights.

Imagine de Tocqueville’s surprise, there-fore, if he were to learn that in the past60 years, as Weidner University profes-sor, Erin Daly, so ably illustrates inDignity Rights, Courts, Constitutions,and the Worth of the Human Person(University of Pennsylvania Press), dig-nity has become an honored value at theinternational level and in most of theworld’s constitutions, invoked in fact farmore frequently than other constitutionalguarantees. Mentioned prominently in theUniversal Declaration of Human Rights,the United Nations has designated digni-ty the foundational underpinning of allother human rights. Germany, Italy,Japan, Israel, and South Africa all haveexplicit constitutional clauses protectinga “right to dignity,” and an actual, tangi-ble right on its own, Germany expressingit as both a positive right obliging the

state to accord dignity and a negativeright preventing the state from denying it.In these countries and in several LatinAmerican ones as well, a right to dignityis actionable; and while in most othercountries it is not as yet, some, like India,Canada, and Hungary, with strong refer-ences to it in their constitutions, haveissued favorable judicial decisions onvarious claims framed as impairments ofhuman dignity.

The constitutions and courts of othernations, according to Daly, while notidentifying an absolute right to dignity,do associate it with a broad range of sub-jects involving core rights: liberty (abor-

tion, sentencing), equality (discrimina-tion, affirmative action), and fraternity(reputation, civic responsibility). Itaffects cases involving civil and politicalrights (voting, expression, equality), andsocio-economic rights (housing, medical-care, employment, pensions). It helpsdefine, and in some cases limit, otherrights (life, privacy, criminal punish-ment). The constitutional courts ofHungary and South Africa, in fact, haveinvalidated capital punishment statuteson dignity grounds. In short, as theauthor concludes, dignity is ushering in anew foundation for human rights acrossthe globe: it is how we describe whatlegal claims people can assert to insistthat their humanity be recognized.

In America as well? The answer is adefinitive “No,” as Professor Daly clearlyindicates. Dignity appears nowhere in theConstitution. Paine, Jefferson, andHamilton did allude to the “natural digni-ty of man,” and the idea does appearperiodically in the Federalist Papers, butit had little influence on the creation ofthe foundation documents of theRepublic, including the Bill of Rights,and very little on American jurisprudencethereafter. The Supreme Court hasalways been much more comfortableattaching dignity to inanimate thingssuch as states, courts, and contracts ratherthan human beings. The Court did cite itin Miranda v. Arizona prohibiting policefrom coercing confessions; and it hasapplied it in search and seizure cases andmost prominently to Eighth Amendmentclaims by convicted inmates.

However, the Court never mentioned itin Brown v. Board of Education (invali-dating racial segregation in schools),Rowe v. Wade (upholding a privacybased right to abortion), Griswold v.Connecticut (invalidating a ban on con-traception), Virginia v. Black (upholdinglimitations on racist speech), and Atkinsv. Virginia (invalidating the death penaltyfor the mentally retarded). And despitesome dissenting opinions insisting thatthe Court follow the lead of the rest ofthe world in promoting dignity rights,human dignity has no constitutional sta-tus in the United States and, as theauthor concludes, is unlikely to attain itanytime soon.

That Ms. Daly looks with favor upon theassertion of dignity as a progressive trendin the world’s collective jurisprudence isquite obvious. To her credit, she recog-nizes the contradictions inherent in digni-ty’s protean definition, in abortion cases,for instance, where it could be cited tosafeguard a fetal interest in life and justas strongly a woman’s interest in bodilyintegrity and autonomy, or where it couldbe applied on both sides of religious veiland speech rights cases. She concedes theblur that the concept creates between leg-islative and judicial powers, political the-ory on the one hand and law on the other,legal rights as such versus entitlements,i.e. access to benefits based on longestablished, other rights, and religiousprinciples versus legal doctrine. Sheidentifies its arrival on the world scene sopowerfully in large part because of the

Dignity Rights in a Digital AgeB O O K R E V I E W

(See Dignity Rights on Page 15)

OnMonday, March 11 at 6 p.m., joinNYCLA’s Justice Center and Foreignand International Law and Women’sRights Committees for a special presen-tation at NYCLA, Home of Law, byManizha Naderi, executive director ofWomen for Afghan Women, on the cur-rent status of women in Afghanistanand what the future holds.

Manizha Naderi was born in Kabul,Afghanistan and raised in New Yorkand New Jersey. She holds a Bachelorof Arts degree in English Language Artsfrom Hunter College. While she hasroots in the Afghan community inQueens, NY, she and her family nowdivide their time between NYC andKabul.

Women in Afghanistan: Today and Tomorrow

DUFFY & POSILLICO AGENCY INC.Court Bond Specialists

BONDS * BONDS * BONDS * BONDS

1-800-841-8879 FAX: 516-741-63111 Birchwood Court • Mineola, NY 11501 (Across from Nassau County Courts)NYC Location: 108 Greenwich Street, New York, NY 10006

Administration • Appeal • Executor • Guardianship

Injunction • Conservator • Lost Instrument

Stay • Mechanic’s Lien • Plaintiff & Defendant’s Bonds

Serving Attorneys since 1975

Complete Bonding Facilities

IMMEDIATE SERVICE!

Over 8,000 patents grantedOver 15,000

trademarks obtainedOver 45 years of experience

or e-mail us at [email protected]

Page 8: February 2013 New York County Lawyer

February 2013 / The New York County Lawyer8

2012 Annual DinnerCelebrating LGBT Equality and Honoring Law

Firms and Corporations that have Demonstrated anExceptional Commitment to LGBT Equality

At NYCLA’s 2012 Annual Dinner on December 11at the Waldorf-Astoria, the NewYork legal commu-nity celebrated LGBT equality and honored corpo-rations and law firms that have demonstrated a com-mitment to LGBT equality. For additional photos,visit our virtual photo album at https://www.face-book.com/NYCLAssoc.

Annual Dinner Honorees and Honored Dais GuestsFront (left to right): Sue C. Jacobs, Goodman & Jacobs, Boris Kostelanetz President’s Medal Honoree; Maureen A. Brundage, GeneralCounsel, The Chubb Corporation; Robert L. Haig, Kelley Drye & Warren LLP, Dinner Co-Chair; Roberta A. Kaplan, Paul, Weiss,Rifkind, Wharton & Garrison LLP, William Nelson Cromwell Honoree; Hon. Jonathan Lippman, Chief Judge of the State of NewYork; Glenn B. Coleman, Bryan Cave LLP; Rosalind S. Fink, Brill & Meisel; Hon. Loretta A. Preska, Chief Judge, United StatesDistrict Court, Southern District of NewYork; Hon. Eric T. Schneiderman, Attorney General of the State of NewYork; ProfessorArthur S. Leonard, NewYork Law School; Hon. Carmen Beauchamp Ciparick, Associate Judge, NewYork Court of Appeals; StewartD. Aaron, Head of NewYork Office, Arnold & Porter LLP, NYCLA President.

2nd Row (left to right): Gene DeFelice, General Counsel, Barnes & Noble Inc.; Michele Coleman Mayes, General Counsel, The NewYork Public Library, Dinner Co-Chair; Pierre Bonnefil, Epstein Becker & Green P.C.; Susan L. Blount, General Counsel, PrudentialFinancial Inc.; Hon.Victoria A. Graffeo, Associate Judge, NewYork Court of Appeals; Hon. Michael R. Sonberg, Justice, NewYorkCounty Supreme Court, President, Association of Lesbian and Gay Judges of NewYork; Pieter Van Tol, Hogan Lovells US LLP.

3rd Row (left to right): Michael B. Solow, Managing Partner, Kaye Scholer LLP; Hon. Robert S. Smith, Associate Judge, NewYorkCourt of Appeals; William J. Honan, Executive Partner, NewYork Office, Holland & Knight LLP; Blaine Templeman, OfficeAdministrative Partner, Sheppard, Mullin, Richter & Hampton LLP; Jeffrey A. Hovden, Robins, Kaplan, Miller & Ciresi LLP; KenjiYoshino, Chief Justice Earl Warren Professor of Constitutional Law, NewYork University School of Law; Carey R. Dunne, DavisPolk & Wardwell LLP; Hal R. Lieberman, Partner-in-Charge, NewYork Office, Hinshaw& Culbertson LLP; William F. Cavanaugh,Jr., Co-Chair of the firm, Patterson Belknap Webb & Tyler LLP.

Left to right: Hon. Carmen Beauchamp Ciparick,Associate Judge, NewYork Court of Appeals; Hon.Robert S. Smith, Associate Judge of the Court ofAppeals; Hon. Jonathan Lippmann, Chief Judge ofthe State of NewYork.

Dinner Co-Chair, Robert L. Haig, (left) KelleyDrye &Warren LLP, presents retiring AssociateJudge, NewYork Court of Appeals, Hon. CarmenBeauchamp Ciparick (right) with a framed cer-tificate in recognition and appreciation of 34years of distinguished and dedicated judicial

Rosalind S. Fink, Brill & Meise, (right) pres-ents the Boris Kostelanetz President’s Medal toSue C. Jacobs, (left) Goodman & Jacobs forher record of dedication and service to theAssociation and the legal profession.

Kenji Yoshino, (left) Chief Justice Earl WarrenProfessor of Constitutional Law, NewYorkUniversity School of Law, presents the WilliamNelson Cromwell Award to Roberta A. Kaplan,(right) Partner, Paul, Weiss, Rifkind, Wharton &Garrison LLP, for her unselfish service to the pro-fession and the community.

Left to right: Stewart D. Aaron, Head of NewYork Office, Arnold & Porter LLP,NYCLA President; Roberta A. Kaplan, Paul, Weiss, Rifkind, Wharton & GarrisonLLP, William Nelson Cromwell Honoree; Sue C. Jacobs, Goodman & Jacobs,Boris Kostelanetz President’s Medal Honoree; Michele Coleman Mayes, GeneralCounsel, The NewYork Public Library, Dinner Co-Chair; and Robert L. Haig,Kelley Drye &Warren LLP, Dinner Co-Chair. NewYork City Council Speaker Christine C.

Quinn presents Welcome remarks.

RECENT EVENTS

Page 9: February 2013 New York County Lawyer

February 2013 / The New York County Lawyer 9

2012 Annual Dinner(Continued from page 8)

Honored dias guests enjoy a musical performance by NYCLAmembers

Nearly 1,000 members of the NewYork legal community attended the 2012Annual Dinner.

NewYork State Attorney GeneralEric T. Schneiderman presentsKeynote remarks.

Vanita Gupta, Deputy Legal Director, ACLU, spoke on a panel aboutstakeholders in the criminal justice system during the first day of theconference

(Left): Conference participants from the criminal justice field partici-pated in lively discussions of Charging, Plea Bargains, Diversion;Pretrial Incarceration; Jury Selection; Pretrial Litigation on Searchand Seizure and Identification Issues; Sentencing and CommunityCorrections; and Community Justice

UPCOMING EVENTS

RECENT EVENTS

All events, unless otherwise noted, will beheld at NYCLA Home of Law, 14 VeseyStreet. Visit the Association’s website,nycla.org for more details, schedulechanges and additions, and to R.S.V.P. forevents, which are subject to change.

February

14th Annual FINRA Listens... and SpeaksMonday, February 4 - 5 p.m.Sponsored by NYCLA’s Arbitration & ADR;Labor Relations & Employment Law; andSecurities & Exchanges CommitteesKatherine M. Bayer, Esq. Director,Northeast Regional Office, FINRA DisputeResolution, will provide updates, includingFINRA’s recent experience with investors’opting for an all-public arbitration paneland will discuss recent initiatives.

Training: Part 137 Attorney-Client FeeDispute Resolution Program Arbitratorsand MediatorsMonday, February 11 – 8:30 a.m.-5 p.m.Sponsored by the Joint Committee on FeeDisputes and ConciliationArbitrators and mediators are invited toattend complimentary training that will pre-pare participants for the program which pro-vides for the resolution of fee disputesbetween attorneys and clients through arbi-tration and mediation. Attorneys interested

in becoming an arbitrator in this programmust be admitted to the NewYork State Barfor at least five years. E-mail a resume andcover letter highlighting any relevant experi-ence to Lois Davis, Director of Pro BonoPrograms at [email protected] as soon aspossible and no later than February 4.

Guinness Beer TastingTuesday, February 19Sponsored by NYCLA’sYoung Lawyers’SectionJoin the Young Lawyers’ Section for anevening of food and drink with colleagueshosted by Guinness. Learn the history andheritage of the Guinness brand while tast-ing various beers and learning pouringtricks. Members-only event. Not a memberand interested in attending? Learn moreabout our membership program.

Reception Honoring Newly Elected,Appointed, Re-Elected andRe-Appointed JudgesTuesday, February 26 - 5:30 p.m.Sponsored by NYCLA’s Committee on theSupreme CourtWelcome remarks by Hon. A. GailPrudenti, Chief Administrative Judge of theCourts of New York State. Special remarksby Hon. Kristin Booth Glen, Surrogate-retired, Surrogate’s Court, County of NewYork. Reception open to NYCLA membersor by invitation-only.

Ida B. Well-Barnett Justice AwardCeremonyThursday, February 28 – 6 p.m.Sponsored by NYCLA and the MetropolitanBlack Bar AssociationNamed for Ida B. Wells-Barnett, one of thefirst African American women to run forpublic office in the United States, the awardis presented to a woman of color whose lifereflects her spirit and courageousness bydistinguishing herself in the right for racialand gender equality. Honoree: Elizabeth D.Moore, General Counsel of ConsolidatedEdison Company of NewYork, Inc. Opento NYCLA and MBBA members.

March

Agents, Managers & EntertainmentAttorneys: What the Heck Do They Do?Monday, March 4 - 7 p.m.Sponsored by NYCLA’s Entertainment,Intellectual Property, & Sports SectionAre you interested in entertainment indus-try matters? Attend this panel discussionbetween an agent, a manager, and enter-tainment attorney and learn the differencesin such roles. Gain insight into when anattorney might want to direct an entertain-ment client to speak with an agent or amanager instead of taking on a task he/sheisn’t comfortable with or fit to do.

In PracticeWednesday, March 6 - 12:30-1:30 p.m.Sponsored by NYCLA’s Young Lawyers’SectionThis “In Practice” event will feature guesthost Michael A. Cardozo, CorporationCounsel, City of NewYork. Members onlyevent.

Women in Afghanistan: Today andTomorrowMonday, March 11 - 6 p.m.Sponsored by NYCLA’s Justice Center andForeign and International Law andWomen’s Rights CommitteesThis forum will feature a special presenta-tion by Manizha Naderi, executive directorof Women for Afghan Women on the currentstatus of women in Afghanistan and what thefuture holds. Free and open to the public.

50th Anniversary of Gideon v WainrightMonday, March 18 – 5:30 p.m.Sponsored by Arnold & Porter, LLP,NYCLA’s Justice Center, Federal CourtsCommittee and Criminal Justice SectionJoin NYCLA for this event commemo-rating the 50th anniversary of the land-mark Gideon v Wainwright case. Theprogram, which will begin with a film,will include a panel of federal and stateprosecutors and defenders followed by areception.

Criminal Justice Leaders Meet to Discuss Racial and EthnicDisparity in the Criminal Justice System

On October 17-19, NYCLA co-sponsored an historic conference, Criminal Justice in the 21st Century:Eliminating Racial and Ethnic Disparity in the Criminal Justice System. Panelists and participants engaged in awide-ranging and candid dialogue about racial disparities that focused on practical recommendations for reform.A conference report will be published shortly.

Page 10: February 2013 New York County Lawyer

February 2013 / The New York County Lawyer10

Many good practitioners have developedthe habit of reading the New York LawJournal on a daily basis. If you subscribeto the paper you can read it in print oronline at NYLJ.com. If you are a regularwith the NYLJ you know that for sometime now the Decisions of Interest areonly available online to subscribers of theNYLJ. The articles, case summaries, andcases in the New York Law Journalshould be kept abreast of, even when notread closely.

If you don’t have a subscription you canregister for daily emails of the New YorkLaw Journal and other ALM productssuch as the National Law Journal and theLegal Times and thus, through the head-lines and free content, keep an eye. Thisis one good way to stay on top of legaldevelopmentsand to monitor what isgoing on.

If you already have an area of practice,speak to colleagues and ask what theyregularly read to stay abreast of theirpractice area. As an example, practition-ers in a Landlord/Tenant law regularlyreview the Apartment Law Insider andLandlord v Tenant, two publications fromthe Vendome Real Estate Media.

For a more general approach to spottinghot topics in law I look at Bob Denney’s

semiannual review of hot areas oflaw practiceat http://www.robert-denney.com/. Robert DenneyAssociates, Inc is a management,marketing and strategic planningcompany. The RDA Communiquésare updated monthly with articlesof interest to attorneys, and twice ayear, for the last 24 years, therehave been articles on “What is Hot,and What is Not in the LegalProfession” (see: http://www.robertdenney.com/pdf/comm-legal-2012-12-whats-hot.pdf).

Another site to monitor iswww.JDSupra.com. JD Supra is arepository of free legal informationshared by the professionals whogenerate it. Not only do they offerlists of hot topics in law but pro-vide links to articles written bylawyers on the topics. If you are awriter, you may also explore howto have the site host your works.

Those who hold the NewYorkState Library-Attorney BorrowersCard have access to a multitude ofresources, law and otherwise. One sourcemade available to NYSL-ABC holders isLegalTrac an index to over 1,600 legalperiodical (which also provides access toover 200 legal periodical in full text). If

one were interested in hydrofracking orcybersecurity and the law this index canbe invaluable in staying on top of the rel-evant literature.

Spotting Hot Topics is one task. How touse the information in your firm is anoth-er task. For advice on this matter I turn tothe NewYork State Bar Association pub-lication, Best Practices in LegalManagement – A Comprehensive Guide.This book is available to holders of theNewYork State Library – AttorneyBorrowers Card in the Loislaw database,in the “Secondary Law-Bar Publications”file. This treatise gives practical, step-by-step advice on focusing on a niche mar-ket, how to break in, the importance ofmonitoring competitors in an area, andthe importance of speaking and writingon the area of law.

For information on the NewYork StateLibrary – Attorney Borrowers Card contactNYCLA’s Director of Library Services,Dan Jordan, [email protected]. Thiscard is only available to NewYork Stateresidents who are admitted to practice inNewYork. Holders of the NYSL-ABC

gain access to special services fromthe State Library in Albany, includ-ing remote access to over ninety-five specialized databases (four ofwhich are legal databases) at nocharge—your tax dollars at work.

Changes in the Library

All libraries are moving awayfrom gathering and distributingcurrent materialin print and aremoving toward a more digitalfuture. The NYCLA Library is noexception and over the last fewyears you may have seen printbooks which are now being keptcurrent through Westlaw and otherservices. This conversion fromprint to digital will continue andthe pace of change will be pickingup. In the next month you will seethe library introduceWestlawNextand enhanced data-bases, including access to NewJersey treatises and formbooks.

While our on-site patrons will seechange and improvement in our

offerings, so will our off-site patrons whoregularly call and email the NYCLALibrary and utilize the NYCLA Libraryfee based services. We will continue toPDF Records & Briefs, old sections ofthe NYCRR and Legislative Historymaterials. We will continue to providecopies of old treatises, law review articlesand cases, and articles from the New YorkLaw Journal.We will continue to offerresearch services to the profession.

In addition, we are developing a newproduct mix which we hope will be ofinterest to all NYCLA members. We areparticularly interested in offering mean-ingful services to NYCLA members whohaven’t used the library services. Staytuned for information on these new serv-ices. The NYCLA Library fee-basedservices offer good value.

Please direct all questions about thisarticle or about the NYCLA Library ingeneral to Dan [email protected] , Director of LibraryServices, New York County Lawyers’Association, 212-267-6646.

Digital Training Center CLE ProgramsUnless otherwise noted, courses arefree and open to the public. Register atnycla.org. Questions? Contact IrinaChopinova at [email protected] or212-267-6646 x203.

FebruaryLexis: IFebruary 6 - 10:30-11:30 a.m.1 MCLE Credit: 1 Skills; Transitional

Finding Case Law on Lexis.comFebruary 6 - 12-1 p.m.1 MCLE Credit: 1 Skills; Transitional

Lexis: New York Statutory,Legislative & Regulatory ResearchFebruary 6 - 1:30-2:30 p.m.1 MCLE Credit: 1 Skills; Transitional

Westlaw: AdvancedFebruary 14 - 10-11 a.m.1 MCLE Credit: 1 Skills; Transitional

Westlaw: EmploymentFebruary 14 - 11:30 a.m.-12:30 p.m.1 MCLE Credit: 1 Skills; Transitional

U.S. Bankruptcy Court ElectronicCase Filing SystemFebruary 20 - 10 a.m.-12:30 p.m.2.5 MCLE Credits: 2.5 Skills;Transitional (Also NJ)Member: $65 Non-member: $85 Non-legal Staff: $35

Using Bloomberglaw.com forLitigationFebruary 21 - 10-10:50 a.m.1 MCLE Credit: 1 Skills; Transitional(Also NJ)

Using Bloomberglaw.com for aCorporate Transactional PracticeFebruary 21 - 11:05-11:55 a.m.1 MCLE Credit: 1 Skills; Transitional(Also NJ)

Westlaw: BasicFebruary 26 - 1:30-2:30 p.m.1 MCLE Credit: 1 Skills; Transitional

Westlaw: EntertainmentFebruary 26 - 3-4 p.m.1 MCLE Credit: 1 Skills; Transitional

LIBRARY NOTES

How to stay on top of Hot Topics in Law

Page 11: February 2013 New York County Lawyer

February 2013 / The New York County Lawyer 11

By Andrew Ricci

When a patient is diagnosed with cancer,accepting the fact that one has cancer is dif-ficult enough. It takes courage worthy of amedal to face surgery, followed by superhu-man endurance and strength to undergoseemingly endless courses of chemotherapyand/or radiation. The thought that one mayhave to continue to work while simultane-ously suffering from the sickness, nausea,and loss of hair that accompanies treatmentmay seem unthinkable and unfair. Unfor-tunately for many, the reality is that evenwith leave afforded under the FamilyMedical Leave Act (FMLA)1 patients mayneed to work through part or all of their bat-tle with cancer in order to maintain theiremployment, health insurance, and income.To add insult to injury, many cancer patientsface discrimination in the workplace thatcan be intolerable or even lead to termina-tion, whether legal or not.

The good news is that you do not need to bean employment lawyer to counsel clientswith cancer regarding several basic pointsthat can make the experience more bearableand help them avoid certain pitfalls in theworkplace.

An attorney first must know the applicablelaws. For those who are not employmentattorneys, the basic laws you should befamiliar with include the Americans withDisabilities Act (ADA)2, FMLA, and theRehabilitation Act §501 (Rehab Act)3.Moreover, state, county, city and municipallaws may also provide greater protection orbetter define key terms. A combination ofthe protection afforded under these laws canbe used to help your clients get the most

and best protection to fit their particular cir-cumstances. In some cases, this can meanthe difference between being able to workthrough the illness and losing their job.

There is some ambiguity and room forinterpretation in the law and questions mayarise as to how the terms are actuallyapplied. Knowing the law may not be dis-positive and your client may not be coveredat all or may be covered by a combinationof laws. For example, the ADA only appliesto employers with 15 or more employees.However, the NYS state Executive Law 292et seq. provides broader protection by defin-ing an employer as someone with no fewerthan four persons in his or her employ.Likewise, in New York City, the NYCHuman Rights Law Administrative Code§8-102 et seq. also defines an employer assomeone with four or more employees.

The FMLA provides eligible employeeswith 12 weeks of unpaid leave in a 12-month period. The question then arises,who is eligible and how is the 12-weekleave period calculated? To be eligibleunder the FMLA, an employee mustwork for an employer with 50 or moreemployees within 75 miles of the work-er’s location; have worked for theemployer for a total of 12 months; andhave worked at least 1,250 hours over theprevious 12 months.

Regarding how the 12-month period is cal-culated and how the 12-week leave may betaken depends on the employer. Under theFMLA, the employer may determine howthe 12-month period is calculated. Forinstance, the 12 months can be measured

Advice for Attorneys RegardingEmployment Rights for Cancer Patients

By Karen Jalkut andJeffrey T. Zaino, Esq.

Workplace bias and discrimination cancause countless problems for a companyand its employees. A few examplesinclude high absenteeism, low morale,low productivity, high turnover, work-place violence, and lawsuits. This articlewill look at what constitutes workplacediscrimination, why it occurs and mani-fests, and what can be done to eliminatesuch discrimination in the workplace.

Statutory and Non-StatutoryDiscriminationWhen faced with a workplace bias com-pliant or case, most attorneys think interms of statutory discrimination. TitleVII of the Civil Rights Act of 1964broadly covers, “employment discrimina-tion based on race, color, religion, sex,and national origin.” Federal statutes alsoprohibit age and disability discriminationthrough the Age Discrimination inEmployment Act of 1967 (ADEA) andthe Americans with Disabilities Act of1990 (ADA). These laws also make itillegal to retaliate against a personbecause the person complained aboutdiscrimination, filed a charge of discrim-ination, or participated in an employmentdiscrimination investigation or lawsuit.There are, however, many other forms ofdiscrimination not contained in Title VII,the ADA or ADEA that can causeunhealthy work environments. Statestatutes also prohibit a wide range of dis-criminatory conduct.

Bias and DiscriminationIt is not unusual for individuals to con-gregate around people with shared attrib-utes. It is also not uncommon for a per-son to feel some degree of unease, be itnegative or positive, around a person thathe or she deems to be different. This,however, does create silos amongemployees and becomes problematic ifthese natural biases manifest into dis-crimination by employees and managersthrough inappropriate speech, behavior,and managerial oversight.

Discriminatory jokes and teasing byemail, texting, Internet downloads,singing, music and verbally are exam-ples of harmful and unacceptableforms of speech. Other discriminatoryforms of behavior can come from pic-tures, posters, graffiti, bullying,harassment, threats and violence. Inconnection with their role in prevent-ing employment discrimination in theworkplace, managers must also bemindful that their managerial oversightof employees is not discriminatory.Even the slightest appearance of dis-crimination is problematic for theworkplace. It is common for employ-ees to feel discriminated against ifbypassed for promotions or raises,given less desirable work and travelassignments, or overloaded with work.Managerial decisions in a workplaceshould always be based on an employ-ee’s performance and needs of thecompany and its employees.

Eliminating Discriminationin the Workplace

(SeeWorkplace Discrimination on Page 13)

(See Patients’ Rights on Page 14)

Family and Medical Leave Act(FMLA) of 1993 1

42 U.S.C. Chapter 28 (1993)

§ 825.113 Serious health condition.

(a) For purposes of FMLA, “serioushealth condition” entitling anemployee to FMLA leave means anillness, injury, impairment or physicalor mental condition that involvesinpatient care as defined in § 825.114or continuing treatment by a healthcare provider as defined in § 825.115.

(b) The term “incapacity” meansinability to work, attend school orperform other regular daily activitiesdue to the serious health condition,treatment therefore, or recoverytherefrom.

Americans with Disabilities Act(ADA) of 1990: 2

42 U.S.C. §§12101 et seq. (1990),

(1) Disability

The term “disability” means, withrespect to an individual

(A) a physical or mental impairmentthat substantially limits one or moremajor life activities of such individual;

(B) a record of such an impairment;or

(C) being regarded as having such animpairment (as described in para-graph (3)).

(2) Major Life Activities

(A) In general

For purposes of paragraph (1), majorlife activities include, but are notlimited to, caring for oneself, per-forming manual tasks, seeing, hear-ing, eating, sleeping, walking, stand-ing, lifting, bending, speaking,breathing, learning, reading, concen-trating, thinking, communicating,and working.

(B) Major bodily functions

For purposes of paragraph (1), a majorlife activity also includes the operationof a major bodily function, includingbut not limited to, functions of theimmune system, normal cell growth,digestive, bowel, bladder, neurologi-cal, brain, respiratory, circulatory,endocrine, and reproductive functions.

(3) Regarded as having such animpairment

For purposes of paragraph (1)(C):

(A) An individual meets the require-ment of “being regarded as havingsuch an impairment” if the individualestablishes that he or she has beensubjected to an action prohibitedunder this chapter because of an actu-al or perceived physical or mentalimpairment whether or not theimpairment limits or is perceived tolimit a major life activity.

(B) Paragraph (1)(C) shall not applyto impairments that are transitory andminor. A transitory impairment is animpairment with an actual or expect-ed duration of 6 months or less.

(4) Rules of construction regardingthe definition of disability

The definition of “disability” in para-graph (1) shall be construed in accor-dance with the following:

(A) The definition of disability inthis chapter shall be construed infavor of broad coverage of individu-als under this chapter, to the maxi-mum extent permitted by the termsof this chapter.

(B) The term “substantially limits”shall be interpreted consistently withthe findings and purposes of theADAAmendments Act of 2008.

(C) An impairment that substantiallylimits one major life activity neednot limit other major life activities inorder to be considered a disability.

(D) An impairment that is episodicor in remission is a disability if itwould substantially limit a major lifeactivity when active.

(E)

(i) The determination of whether animpairment substantially limits amajor life activity shall be made with-out regard to the ameliorative effectsof mitigating measures such as

(I) medication, medical supplies,equipment, or appliances, low-visiondevices (which do not include ordi-nary eyeglasses or contact lenses),prosthetics including limbs anddevices, hearing aids and cochlearimplants or other implantable hearingdevices, mobility devices, or oxygentherapy equipment and supplies;

(II) use of assistive technology;

(III) reasonable accommodations orauxiliary aids or services; or

(IV) learned behavioral or adaptiveneurological modifications.

(ii) The ameliorative effects of themitigating measures of ordinary eye-glasses or contact lenses shall beconsidered in determining whetheran impairment substantially limits amajor life activity.

(iii) As used in this subparagraph

(I) the term “ordinary eyeglasses orcontact lenses” means lenses that areintended to fully correct visual acuityor eliminate refractive error; and

(II) the term “low-vision devices”means devices that magnify,enhance, or otherwise augment avisual image.

Sec. 12103. Additional definitions

As used in this chapter

(1) Auxiliary aids and services

The term “auxiliary aids and servic-es” includes

(A) qualified interpreters or othereffective methods of making aurallydelivered materials available to indi-viduals with hearing impairments;

(B) qualified readers, taped texts, orother effective methods of makingvisually delivered materials availableto individuals with visual impairments;

(C) acquisition or modification ofequipment or devices; and

Definitions of “Disability”Under Various Laws

(See Definition of Disbility on page 15)

Page 12: February 2013 New York County Lawyer

February 2013 / The New York County Lawyer12

problems — the federal laws in exis-tence regulate only certain entities (suchas healthcare providers or financial insti-tutions); however, what happens if athird party has been entrusted with per-sonal data and fails to secure it? As anillustration, what happens in the situationwhere a law firm loses sensitive dataprovided by a client due to a stolen harddrive or laptop? Would they be liable fora privacy violation?16 And to avoid FTCenforcement, what if a company simplydecides not to have a privacy policy sothat it cannot mislead consumers as towhat it is doing with their data?

In a report issued in 2012, the WhiteHouse presented its framework for pass-ing privacy legislation. It presented aConsumer Privacy Bill of Rights that ithopes will be passed by legislation orvoluntarily adopted in the absence oflegislation.17 It further outlined a processfor interested parties to agree on anenforceable code of conduct, providedfor greater enforcement by the FTC, andencouraged attempts to harmonize poli-cies across countries.

In the meantime, more and more individ-uals and businesses are turning to cloudcomputing, leading to growing concernthat the lack of a comprehensive frame-work for privacy and security of person-al data could slow future innovations insuch technology.18 For now, in theabsence of a unifying legislative frame-work, clear privacy policies, disclosuresto consumers about the treatment andsecurity of their information, and opt-inshave become best practices to addressdata privacy concerns.

Jane Chuang is a NYCLA andEntertainment, Intellectual Property, andSports Section member, and is a partner atLee Anav Chung LLP. She practices gener-al commercial litigation, and advises ontrademark, copyright and media law issues.

References1. Electronic Privacy Information Center(“EPIC”), In the Matter of Google, Inc.(FTC, Feb. 2010), available athttp://epic.org/privacy/ftc/googlebuzz/GoogleBuzz_Complaint.pdf2. Tricia Bishop, Law Firm Loses Hard Drivewith Patient Records, The Baltimore Sun,available at http://www.baltimoresun.com/news/maryland/bs-md-stent-hard-drive-20111010,0,599052.story (Oct. 10, 2011).

3. Frederic Lardinois, PleaseRobMe and theDangers of Location-Based SocialNetworks, Readwrite (Feb. 17, 2010), avail-able at http://readwrite.com/2010/02/17/pleaserobme_and_the_dangers_of_location-aware_social_networks.4. Brett Molina, Instagram Updating PolicyAfter Photo Backlash, USA Today (Dec. 19,2012), available at http://www.usatoday.com/story/tech/2012/12/18/instagram-privacy-policy-advertisers/1777005/.5. Pub. L. 104-191; 45 CFR Parts 160 and164 (Privacy Rule).6. Pub. L. 106-102.7. 15 U.S.C. § 6501 et seq.; 16 CFR Part 312.8. 15 U.S.C § 41 et seq.9. FTC, Press Release, Google Will Pay$22.5 Million to Settle FTC Charges ItMisrepresented Privacy Assurances to usersof Apple’s Safari Internet Browser, Aug. 9,2012, available athttp://ftc.gov/opa/2012/08/google.shtm.10 FTC, Press Release, FTC ChargesDeceptive Privacy Practices in Google’sRollout of Its Buzz Social Network, March30, 2011, available athttp://www.ftc.gov/opa/2011/03/google.shtm11. Miguel Helft, Critics Say GoogleInvades Privacy with New Service, N.Y.Times (Feb. 12, 2010), available athttp://www.nytimes.com/2010/02/13/tech-nology/internet/13google.html.12. FTC, FTC Charges Deceptive PrivacyPractices, available athttp://www.ftc.gov/opa/2011/03/google.shtm.13. FTC, Press Release, Myspace SettlesFTC Charges That It Misled Millions ofUsers About Sharing Personal Informationwith Advertisers, May 8, 2012, available athttp://www.ftc.gov/opa/2012/05/myspace.shtm; FTC, Press Release, Facebook SettlesFTC Charges That It Deceived Consumersby Failing to Keep Privacy Promises, Nov.29, 2011, available athttp://www.ftc.gov/opa/2011/11/privacyset-tlement.shtm.14. Cal. Bus. & Prof. Code §§ 22575 to22577.15. EPIC, EU Data Protection Directive,available at http://epic.org/privacy/intl/eu_data_protection_directive.html (last accessedJan. 14, 2013).16. See Bishop, Law Firm Loses HardDrive, available at http://www.baltimore-sun.com/news/maryland/bs-md-stent-hard-drive-20111010,0,599052.story.17. The White House, Consumer DataPrivacy in a Networked World: AFramework for Protecting Privacy andPromoting Innovation in the Global DigitalEconomy (Feb. 2012), available athttp://www.whitehouse.gov/sites/default/files/privacy-final.pdf, at 1-2.18. Justin Brookman, Op-ed, Why the USNeeds a Data Privacy Law – and Why ItMight Finally Get One, Ars Technica (July18, 2011), available athttp://arstechnica.com/tech-poli-cy/2011/07/why-the-us-needs-a-data-priva-cy-lawand-why-it-might-actually-happen/.

Your Data Exposed(Continued From Page 3)

NYCLA frequently reports, comments,and supports issues affecting the NewYork City legal community and hasrecently commented on or supportedthe following issues:

• Criminal Justice Section SubmitsComments to the New York StatePermanent Sentencing CommissionRegarding the DeterminateSentencing Proposal for Non-Violent, Non-Sex, Non-DrugFelonies

• Civil Rights & Civil LibertiesCommittee Sends Letter in Supportof New York City Council Bill 881-2012 Creating a Municipal Office

of the Inspector General for theNew York City Police Department

• NYCLA President Stewart D.Aaron sends letter to NYSBA onthe Proposal to Amend the NY CLERequirements for Newly AdmittedAttorneys

• Civil Rights & Civil LibertiesCommittee and Criminal JusticeSection Submit Comments toNYSBA on the Use of SolitaryConfinement in New York Stateand City Prisons

Learn more on the News &Publications section of nycla.org.

NYCLA Comments on and Supports Issues

[ Over 25 Years \

Providing Consultation to Attorneys

& the Courts on Psycho-legal Matters

• Criminal Cases: Competency Issues, Criminal

Responsibility, Extreme Emotional Disturbance, Risk

Assessment, Sex Offender Workups & Dispositional

Planning

• Matrimonial & Family Court Cases:

Custody/Visitation, Neglect/Abuse, Termination,

Delinquency, Family Violence, & Adoptions

• Civil Cases: Competency Issues, Head Trauma,

Sexual Harassment, Discrimination, Immigration,

& Post-Traumatic Stress Disorders

Comprehensive Diagnostic &Treatment Services

[email protected]

MAIN OFFICE26 Court Street, Suite 1711, Brooklyn, NY 11242

718-237-2127

LONG ISLAND OFFICE45 North Station Plaza, Suite 404, Great Neck, NY 11021

516-504-0018

MANHATTAN139 Manhattan Avenue, New York, NY 10025

212-280-3706

The New York Center forNeuropsychology

& Forensic Behavioral Science

Dr. N.G. Berrill, Director

Page 13: February 2013 New York County Lawyer

February 2013 / The New York County Lawyer 13

The 7 Sins of E-NewslettersBy Fred J. Cohen, J.D.

You draft a clever e-mail message andsend it off to hundreds, or even thou-sands, of contacts and there you have it— your firm’s monthly e-newsletter.Seems simple but without the right soft-ware and messaging, these e-mail blastsmay do more harm than good. If you’resending out e-newsletters as part of yourfirm’s ongoing marketing strategy, makesure you’re not committing one, or sev-eral, of the unfortunate sins listed below:

E-Newsletter Sin #1: You can see allother recipients listed

If you asked any attorney if he or shewould provide you with a list of theirclients, they’d be quick to deny yourrequest. But without an e-mail programdesigned to properly send an individuale-mail to all recipients, you very wellmay be sharing your client list with allof your contacts.

E-Newsletter Sin #2: There is no wayto unsubscribe

One quick way to get your email addressadded to spam lists is to send outnewsletters without an unsubscribe fea-ture. Undoubtedly, there will be recipi-ents who no longer wish to receive themass e-mails and without the option toopt out from future mailings, it’s likely

that they will send your message to theirspam folders. A handful of these “spammarks” and you may find your e-mail

account on a few blacklists.

E-NewsletterSin #3: The newsletteris delivered at a timewhen most are notchecking e-mails

Without the ability to presched-ule newsletters, many attorneys sendout their e-mail blasts when they havesome free time — very early in themorning or late in the evening once thebillable work is done. For optimalresults, avoid sending out e-blastsbefore 10 a.m. or after 8 p.m. Mostexperts agree that lunch time and justbefore dinner is best because this iswhen most people check both their pro-fessional and personal e-mail accounts.

E-Newsletter Sin #4: The message ispromotional and not informational

Every once in a while, you can get awaywith sending a message to your clientsand colleagues promoting your servicesbut as a general rule of thumb, make surethat all of your monthly e-blasts deliversome sort of value to your recipients.

E-Newsletter Sin #5: The e-mail doesnot stand out in that crowded inbox

Your newsletter should not be a plain e-mail message. Just as with all marketing

pieces, it should be visually appealingwith your branding to make sure it isnoticed and most importantly recog-nized as a message from your firm.

E-Newsletter Sin #6: Your messagesare just rather boring

Although you probably love your areaof practice and related subject matter,it’s likely that all of your recipients maynot share your same interest level. Justas with website copy, make sure thatyou are writing for your audience in alanguage they can understand. To keepthings interesting, you may considerincluding some general interest articleswhich are not legal in nature but stillinteresting.

E-Newsletter Sin #7: You just have onerecipient list and one message for all ofyour contacts

If you want to implement a really effec-tive e-newsletter campaign, it’s essentialthat you create multiple mailing listswhich will allow you to draft more tar-geted messaging. Depending on yourpractice, you may have one list for cur-rent clients, one list for fellow advisorsand yet another for referral sources.

Fred J. Cohen, J.D., is the founder andPresident of Amicus Creative Media, anattorney web design and marketingcompany (amicuscreative.com), and aNYCLA member benefit partner. He canbe contacted at 877-269-0076.

Workplace SolutionsEmployers should draft and distributeto all employees a Policy Code ofConduct for a discrimination-freeworkplace. It is important to implementthe Code company-wide and establishclear lines of authority for those whoare going to enforce it. A messageshould be from top down that discrimi-natory speech and behavior will not betolerated. It is not merely enough todistribute a Code and put it on a work-place bulletin board, it is a matter ofcorporate culture that must be practicedfrom the board room to the bathroom.All employees should be trained on thedetails of the Code.

All employers should have a well-definedcomplaint process. Also, someone shouldbe available to help the employee com-plainant with the processing of his or hercomplaint. Once the complaint is filed, itshould be investigated promptly. Theinvestigator must be extensively trainedin how to properly investigate and reporton their findings and recommendations.The investigator should look beyond TitleVII types of discrimination.

It is important to find out what remedythe employee complainant seeks. If it isearly in the process, the only remedysought might be nothing more than anapology and promise that it (whatever itis) will not happen in the future. Theemployer is then on notice and theemployee or employees responsibleshould be reprimanded and monitoredto ensure no repeat acts of discrimina-tion occur. You do not want to re-vic-timize the victim.

In addition to investigating individualdisputes by employee complainants, anemployer should initiate fact-finding

investigations when faced with repeatedor similar type employee complaints, orclaims. An investigator and fact-findercan conduct an extensive investigation,evaluate ongoing disputed factsbetween the employer and employees,and provide the employer and its man-agement team with a better understand-ing of what is creating a negative envi-ronment.

Employers should also have an alterna-tive dispute resolution process availableto complainants should no resolution orsettlement occur following an investiga-tion. Mediation and/or arbitration providea private forum that can effectively andefficiently resolve discrimination claimsthat could otherwise be embarrassing forboth the employer and employee ifresolved in a public forum. The majority,if not all costs, of the mediation and/orarbitration process should be borne bythe employer and the employee shouldhave equal access to information and asay in the selection of the mediatorand/or arbitrator.

Discrimination can come in all forms andtypes in a workplace. If employers andemployees work together they can createa discrimination free workplace that goesbeyond just eliminating the more tradi-tional forms of discrimination.

Karen Jalkut is the Vice President of theLabor, Employment and ElectionsDivision of the American ArbitrationAssociation in Boston. She oversees theoperations, development and panel ofarbitrators for the Labor and EmploymentArbitration caseloads in New England.

Jeffrey T. Zaino, Esq., a NYCLA member,is the Vice President of the Labor,Employment and Elections Division ofthe American Arbitration Association inNew York. He oversees the operations,development and panel of arbitrators forthe Labor and Employment Arbitrationcaseloads in New York.

Workplace Discrimination(Continued From Page 11)

TO ADVERTISE IN THENEW YORK COUNTY LAWYER

CALL 631-427-7000

Page 14: February 2013 New York County Lawyer

February 2013 / The New York County Lawyer14

from the first day of the employee’s leave,by the calendar year, or by the employer’sanniversary date of hire. Whether the 12-week unpaid leave runs concurrently or sep-arately from any paid vacation or sick timeis also at the discretion of the employer solong as the policy applies to all employeesequally. Furthermore, intermittent leavemay require that the employee transfer to analternate position that better accommodatesrecurring periods of leave. Therefore, it isimportant to advise your client to review thepolicy in the employee handbook beforerequesting leave under the FMLA in orderto avoid any unexpected surprises.

One important exception to the FMLA thatshould be noted is the “key employee” pro-vision under §§ 825.217-9. Under theexception, key employees still have theright to take FMLA leave but the law placeslimits on the right of key employees to bereinstated to their position. To invoke theexception, the employee must be among thehighest paid 10 percent of all employeeswith 75 miles of the worksite at the time theemployee gives notice for leave. Theemployer must make an assessment thatreinstatement (not absence while on leave)of the key employee would cause “substan-tial and grievous economic injury” to theemployer. Importantly, the employer isrequired to give written notice to theemployee that the employee meets the qual-ification of a key employee at the time theemployee makes the request for leave underthe FMLA or takes emergency leave. Thenotice must give the basis for the determi-nation and state that the employee is stillentitled to take the leave, although beingdenied reinstatement at its conclusion.Failure to provide such timely notice willresult in the employer being unable to denyreinstatement.

The ADAAmendments Act of 2008 signifi-cantly expanded the ADA. Now cancer isdefined as a disability because the determina-tion of whether an impairment is a disabilityis to be made without regard to any mitigat-ing measures. As a result, an employee witha condition that is controlled by medication –such as diabetes, epilepsy, or cancer – is nowconsidered disabled, regardless of the med-ication’s mitigating effects.

As long as an employee is able to performthe essential functions of the job, then thatemployee is entitled to a reasonable accom-modation to enable the employee to performthe job. A reasonable accommodation is onethat would not impose an undue burden onthe employer, which is determined on acase-by-case basis. For example, a cancerpatient may be able to adjust her workschedule to work extra hours earlier in theweek if she knows she must leave the officefor treatment later in the week or will notfeel well enough to attend work immediate-ly after treatment. Examples of otheraccommodations may include an aid to liftheavy items, breaks during the day, the abil-ity to work from home several days a week,a place to lie down, or an ergonomic chair.

It’s important to note that the employer doesnot have to accept the employee’s proposedaccommodation. It’s a collaborative processthat may involve some give and take.Therefore, to smoothe and simplify theprocess, when making such a requestemployees should be very precise in statingexactly what it is they need and how it willlet them continue to fully perform theirjobs. This way the employer knows exactlywhat to expect and may be able make adecision immediately without reservation.The better and more precise the request, themore inclined the employer will be toapprove it. For example, the employeeshould state “I need a 15 minute breakevery two hours;” as opposed to saying “Ineed to take breaks throughout the day.” In

some cases, a doctor’s note can be helpfulto get an accommodation an employerwould otherwise be reluctant to give. Also,employees should be prepared for requeststo undergo independent medical examina-tions or provide additional information fromtreating physicians.

One very important consideration concernshow much information employees shoulddisclose to their employers about their ill-ness. Obviously the employee must revealthat he or she has a disability in order torequest a reasonable accommodation. Onepossible benefit of identifying a disabilitywith the employer is that it can serve as pro-tection against later discrimination. If theemployer has actual knowledge of an illnessor disability, it will make it much harder todefeat a charge of discrimination if it latertakes an adverse action against the employee.Conversely, if the employee does not dis-close an illness or disability, in order for theemployee to claim discrimination, he or shemust show the employer had a belief or actu-al knowledge of the employee’s disability.

How much detail should employees stateabout their illness when making a requestfor an accommodation? The safest and mostconservative answer is as little as possible.Although there are many well-meaningemployers, there is no way to know how anyemployer will react when given the informa-tion that one of its employees has cancer.Some employers may react unpredictably orrespond in a discriminatory or deceitfulmanner to secure what they perceive to be intheir best interest. Moreover, while yourclient may have friends at work, with respectto their illness it is safest to assume anythingtold to coworkers will make its way to man-agement, even if they have the best inten-tions. Therefore it’s best to advise yourclients to refrain from revealing and dis-cussing their illness with coworkers they arefriendly with and whom they may otherwiserely on for support.

Under the best circumstances, not feelingwell mentally or physically can make anyoneirritable. Add cancer to the equation, andunderstandably a person undergoing treat-ment will become moody, overwhelmed, andshort-tempered. As difficult as it may sound,this is precisely when your client mustattempt to smile and maintain a pleasantdemeanor, despite discomfort and pain.Sadly, relevant statutes make no exceptionor protection for irascible or disgruntledworkers, if this behavior precludes theemployee from performing his or her essen-tial functions.

For some cancer patients, the physicaland/or mental demands are just too much.Fatigue and a cognitive phenomenon called“chemo brain,” where chemotherapy causesmental fogginess and memory problems,can cause errors on the job and a decline inperformance. Such deficiencies speak to theessential functions of the job and could be alegitimate cause for the employee’s dis-missal. In such cases, if permitted by theemployer and if financially feasible, it maybe best to recommend the employee take aleave of absence.

For patients with cancer who are in theunfortunate position of looking for workwhile being treated, they may be vulnera-ble to discriminatory hiring practices. Inhiring, employers may legally ask onlyquestions that speak to the essential func-tions of the job and they must ask the samequestions to all applicants. The reality isthat many employers, whether intentionallyor not, ask questions that could be consid-ered discriminatory under the ADA.Examples of such questions may include“do you take prescription medication” or“have you ever been injured on the job”for a position such as a librarian becausethey are not relevant to the job function ofa librarian. On the other hand, if applicantshave a visible disability (such as hair loss

Patient’s Rights(Continued From Page 11)

A roundup of recent national andlocal news stories featuring NYCLAand its members

Law360.comJanuary 2, 2013Top NY Judges Could See RetirementAge Bumped To 80NYCLA’s President, Stewart Aaron,is quoted in this article about pendinglegislation that could increase theretirement age for state judges. Thearticle quotes Aaron saying, “It’sregrettable that judges of the caliberof Judge Kaye and Judge Ciparickhave been forced to retire too early…I have no doubt that they could haveably served the public for many moreyears.” The article goes on to say,“Legal associations, includingNYCLA and the larger NewYorkState Bar Association, likely wouldfoster an effort to educate votersabout why the changes are neededshould it pass the legislature, accord-ing to Aaron. “I would imagine somesort of public education campaignwould be in order when the timecame,” he said. “We have able, smartjudges that want to continue workingin the public interest and right nowwe don’t let them.”

New York Law JournalNYCLA Hosts Annual DinnerDecember 13, 2012The Law Journal ran a photo fromNYCLA’s 98th annual dinner held onDecember 11 at the Waldorf-Astoria.It includes a photo of NYCLA’s

President, Stewart Aaron alongsideRoberta Kaplan, a partner at Paul,Weiss, Rifkind, Wharton & Garrisonwho received the William NelsonCromwell Award; Sue Jacobs ofGoodman & Jacobs, who received theBoris Kostelanetz President’s Medal;and dinner co-chairs Michele ColemanMayes, general counsel, NewYorkPublic Library and Robert Haig, apartner at Kelley Drye &Warren.

Metropolitan Corporate CounselLetter from the President of the NewYork County Lawyers’AssociationDecember 2012This publication ran an letter fromNYCLA’s President, Stewart Aaron,which focuses on how readers can goabout making positive changes intheir lives and careers in the new year.

New York Law JournalNYCLA Holds Holiday Toy DriveNovember 28, 2012A photo from NYCLA’s HolidaySeason Kickoff and Toy Drive event,sponsored by the Young Lawyers’Section and held on November 26,appeared in this issue of the LawJournal. The photo is an image of acourt attorney placing a toy in thecollection box at the event at theevent co-sponsored by the NigerianLawyers’Association, the AsianAmerican Bar Association of NewYork, and the NewYork Women’s BarAssociation, which benefited the U.S.Marine Corps Reserves’ Toys for Totscampaign.

NYCLA In The News

(See Patient’s Rights on page 15)

Page 15: February 2013 New York County Lawyer

February 2013 / The New York County Lawyer 15

PROPERTYLAWYER TO LAWYER

SECURITIESLAW

John E. Lawlor, Esq.Securities

Arbitration / Litigation;FINRA Arbitrations;Federal and StateSecurities Matters

(516) 248-7700129 Third Street

Mineola, NY 11501johnelawlor.com

SERVICE DIRECTORYTO PLACE YOUR AD CALL 631-427-7000

Real EstateServices Employment

(D) other similar services and actions.

Rehabilitation Act 501 3The Rehabilitation Act of 1973 29 U.S.C.§§791 et seq. (1973)

(B) Certain programs; limitations onmajor life activities

Subject to subparagraphs (C), (D), (E),and (F), the term “individual with a dis-ability” means, for purposes of sections701, 711, and 712 of this title and sub-

chapters II, IV, V, and VII of this chap-ter [29 U.S.C. §§ 760 et seq., 780 etseq., 790 et seq., and 796 et seq.], anyperson who has a disability asdefined in section 12102 of Title 42.

NYS State Executive Law 292

N.Y. EXC. LAW § 292 : NY Code -Section 292: Definitions

21. The term “disability” means (a) aphysical, mental or medical impairmentresulting from anatomical, physiological,genetic or neurological conditions whichprevents the exercise of a normal bodilyfunction or is demonstrable by medicallyaccepted clinical or laboratory diagnostictechniques or (b) a record of such animpairment or (c) a condition regardedby others as such an impairment, provid-ed, however, that in all provisions of this

article dealing with employment, theterm shall be limited to disabilitieswhich, upon the provision of reasonableaccommodations, do not prevent thecomplainant from performing in a rea-sonable manner the activities involved inthe job or occupation sought or held.

NYC Administrative Code §8-102

§ 8-102 Definitions. When used in thischapter:

16. (a) The term “disability” means anyphysical, medical, mental or psychologi-cal impairment, or a history or record ofsuch impairment.(b) The term “physical, medical, mental,or psychological impairment” means:(1) An impairment of any system of thebody; including, but not limited to: theneurological system; the musculoskele-

tal system; the special sense organs andrespiratory organs, including, but notlimited to, speech organs; the cardiovas-cular system; the reproductive system;the digestive and genito-urinary sys-tems; the hemic and lymphatic systems;the immunological systems; the skin;and the endocrine system; or(2) Amental or psychological impair-ment.(c) In the case of alcoholism, drugaddiction or other substance abuse, theterm “disability” shall only apply to aperson who (1) is recovering or hasrecovered and (2) currently is free ofsuch abuse, and shall not include anindividual who is currently engagingin the illegal use of drugs, when thecovered entity acts on the basis ofsuch use.Ethics Hotline

The Committee on ProfessionalEthics accepts both written and tele-phone inquiries on ethics matters andprovides advisory opinions. For addi-tional information, call the memberslisted below.

February 1-14Lew Tesser212-754-9000

February 15-29Anne Loranger212-656-5263

March 1-15Bruce Handler212-508-9372

March 16-31Sarah Jo Hamilton845-412-5011

Please Note: Assignments are subjectto change.

Questions to the Hotline are limitedto an inquiring attorney’s prospectiveconduct. The Hotline does notanswer questions regarding past con-duct, the conduct of other attorneys,questions that are being litigated orbefore a disciplinary committee orethics committee, or questions oflaw. This notation shall not be con-strued to contain all Hotline guide-lines. For a full discussion of EthicsHotline guidelines, please see thearticle below, “Guidelines onNYCLA’s Ethics Hotline,” publishedin the September 2006 issue of NewYork County Lawyer.

Definition of Disability(Continued From Page 11)

unmitigated horrors of the Second WorldWar, rather than stemming from the natu-ral evolution of rights in general. Butnone of this chills her enthusiasm fordignity as a dynamic new legal concept,value, and right, which she creativelyextends and explores in all of its possibledimensions.

What the author does not appear to con-sider, as de Tocqueville undoubtedlywould, are its potentially negative conse-quences. He would not only point to apossible “false bottom” to the box hementions, the misuse of its application,

but perhaps even more important, theabsence of a sturdy “top.” So ubiquitous,so elastic, so innately attractive is theword (Who can possibly be againsthuman dignity?) that on the world stageit may represent the mere gloss of agree-ment to avoid the much harder tasks ofmeaningful negotiation and concreteaction, and among nations unrealisticdemands by their citizens for social andeconomic benefits based on assertions ofindividual self-determination and self-worth that could result, among otherthings, in dire financial results such aspresent day Greece, Spain, and Italy arenow experiencing. And it could lead todownright dangerous conclusions whenfaced with stark reality. In an unfortunate

bit of hyperbole and exhuberance in anotherwise sound and superbly writtenexercise, the author suggests that the“flipside” of the phrase “Never Again!”may very well be dignity. Here, she isflatly mistaken. The phrase has no flip-side, only a possible footnote. It wouldread something like, “Go ahead, makemy day!” And de Tocqueville wouldsurely agree.

Frank Taddeo, Esq. is a member ofNYCLA’s Law & Literature Committee. Aspecialist in IP law, he has authored abook of law for the layman and articlesfor a variety of journals, including theNew York Times. He holds an advanceddegree in European history.

from chemo) or have identified their dis-ability during the interview process, theemployer is permitted to ask how the appli-cant intends to perform the essential func-tions of the job, including what accommo-dations, if any, will be necessary.

Although certain questions may be illegal,the bottom line is that your client needs thejob. It’s important to instruct your client toanswer questions truthfully, but if possible torespond in a way that avoids disclosure of hisor her illness. If necessary, they may declineto answer an uncomfortable question or onthe other hand, they may feel compelled tostate that they have cancer and may requirean accommodation. If the client gets the job,then “no foul, no harm.” On the other hand,

if the employer asks your client discriminato-ry questions then declines to extend a joboffer, and the law infers that the employeruses discriminatory hiring practices and maybe liable for damages under the ADA.Alternatively, if your client provides untruth-ful or misleading information on the applica-tion and is subsequently hired, such informa-tion can serve as an independent basis for ter-mination notwithstanding the protections ofthe ADA and other applicable laws.

Cancer is never a pleasant experience, butwith these few tips as a starting point, youmay make your clients’ experience just a lit-tle smoother. Formulate a work/treatmentschedule by maximizing all the possibletime-off afforded through a combination ofvacation, sick time, and unpaid leave underthe FMLA, state and local laws, and theemployer’s rules. Work together to plan apresentation for the employer regarding what

reasonable accommodations your clientrequires getting through this period. At best,you may help your clients avoid problemsthat can possibly cost them their jobs andhelp steer clear of all the complications asso-ciated with unemployment and loss of healthinsurance benefits.

Andrew Ricci, a NYCLA Health Law andInsurance Law Committee and YoungLawyers’ Section member, is currently agraduate legal fellow with the CancerAdvocacy and Elderlaw Projects at the CityBar Justice Center while he seeks permanentemployment in health law, trusts & estates,or elder law. Previously a law clerk withRosenberg & Estis, P.C. while he attendedFordham University School of Law, he grad-uated this past May and his applications arepending for admission to the Bar in NewYork and New Jersey.

Dignity Rights(Continued From Page 7)

Patient’s Rights(Continued From Page 14)

Beautiful Melville, LI, windowed offices andsecretarial stations available for subletwith suite of attorneys. Fully furnished

offices. Full service suite withinternet access, copier,

fax and postage available.

Call Jason Altman(63l) 777-2401 X35

for more information.

OFFICE FORRENT

ASSOCIATEPrestigious insurancedefense firm seeks

experienced (3-5 years)New York admitted

general liability litigatorsfor its Mineola office.

E-mail resume to:

sseennddllaawwrreessuummeess@@ggmmaaiill..ccoomm

ASSOCIATE WANTED

Page 16: February 2013 New York County Lawyer

February 2013 / The New York County Lawyer16

GGrrooww yyoouurr bbuussiinneessss..Whatever you’re selling, Legal Media Publishing can put you in front of a very exclusive set -- members of the legal profession. Our legal market publications connect you with potential clients in New York City, Queens and Long Island.

Litigation Financing

Court Reporting

Real Estate

Luxury Automotive

Lawyer-To-Lawyer

Expert Testimony

Technical Services

Research and Writing

Office Furnishings

IT Services

Appeals

Business Capital

Transportation Services

Office Space

Real Estate

Vacations

… you name it!

631-427-7000

T H E N E W Y O R K C O U N T Y L A W Y E R - T H E Q U E E N S B A R B U L L E T I N - T H E S U F F O L K L A W Y E R

AADDVVEERRTTIISSEE!!