September 9th, 2011

Federal Judge Strikes NY Law Requiring Attorneys Have Office in State

Ekaterina Schoenefeld, who took on the State of New York, and won.

A federal judge has struck down the long-standing rule that out-of-state attorneys licensed in New York must maintain an office here. In a decision dated Wednesday, September 9, Senior Federal Judge Lawrence Kahn, sitting in the Northern District of New York, said that New York Judiciary Law 470 was unconstitutional. The effect of this ruling is that out-of-state lawyers are no longer to hang a shingle here in order to practice here, representing a boon to solo practitioners that work from homes and small offices on shoe-string budgets.

After discussing the long history and changing requirements of New York law over the last 139 years — which started with the requirement that lawyers must actually live in New York in order to practice here — the Court ruled that even with all the changes such that now residency was no longer required, the law could not pass constitutional muster as it violated the Privileges and Immunities Clause of the Constitution. The law, Judge Kahn wrote, provided an extra and discriminatory burden on attorneys that live out of state, and the State did not have a “substantial interest” in having the statute. He wrote that “Section 470’s requirement that nonresident attorneys maintain an office in-state implicates the fundamental right to practice law under the Privileges and Immunities Clause.”

Judiciary Law Rule 470 sets forth:

“A person, regularly admitted to practice as an attorney and counsellor, in the courts of record of this state, whose office for the transaction of law business is within the state, may practice as such attorney or counsellor, although he resides in an adjoining state.”

All of the States defenses were found wanting. This included

The action, brought by Ekaterina Schoenefeld by New Jersey. She persuasively argued that “New York resident attorneys may practice law out of their basements,” while “nonresidents are required to rent offices in New York (no matters how few in number their New York clients may be) in addition to maintaining offices and residences in their home states.”

The action is entitled Schoenefeld v. State of New York, with the decision at that link.

The Court’s conclusion:

Defendants have failed to establish either a substantial state interest advanced by Section 470, or a substantial relationship between the statute and that interest, the Court concludes as a matter of law that it infringes on nonresident attorneys’ right to practice law in violation of the Privileges and Immunities Clause.

In February 2010, Carolyn Elefant discussed the case at My Shingle in its earlier phase when the defendants attempted to have the case dismissed: Attorneys Defending Bar Requirements Say that Lawyer Must Violate Them To Bring a Challenge. And she has an update yesterday: A Solo Fought the Law and the Solo Won! NY Jud. Code 470 Found Unconstitutional!

August 30th, 2011

New York Judges Finally Get A Raise (Updated)

It only took 12 years. They will be getting a 27% raise, which sounds like a lot, until you consider. Twelve years. Yeesh.

Because the politicos who are supposed to make these decisions weren’t up to the task, the appointed a commission to make the decision for them. It’s worth noting that the 27% increase was a 4-3 decision, with the dissenters saying it wasn’t high enough.

The judges were getting $136,700. Now they will get raises in the following increments:

$160,000 as of April 1, 2012;
$167,000 as of April 1, 2013; and
$174,000 as of April 1, 2014.

I’ve covered the problem of our judicial salaries many times in the past, as well as the litigation that accompanies it. I’ve also lobbied the Legislature along with the New York State Trial Lawyers Association on the subject. So this post is really a short IT’S ABOUT TIME! finality to those other missives, one of which I once found hanging on the wall outside a courtroom along with editorials from local newspapers.

Update, 8/31/11, from the NYLJ: Despite Outcome, Lippman Says Pay ‘Nightmare Is Over’ — from a webcast yesterday to the state’s judiciary, the Chief Judge said:

“While we cannot change the fact that by any standard we have not been treated fairly or respectfully over the last dozen years…the miserable situation that we have endured for so long will shortly be a thing of the past,” Judge Lippman said.

…

“We are all understandably disappointed that our judiciary was not made whole, not even close, for the long, torturous 12 year ordeal that we have experienced,” the chief judge told his colleagues.

A few of my prior postings on the subject as we put this issue to bed for awhile:

Kaye v. Silver, Judicial Pay Raise Suit (Today’s Argument)

New York’s Chief Judge Kaye Finally Brings Suit for Judicial Pay Raises

A Judicial Brawl in New York As Chief Judge Kaye Abandons Lawsuit Threat

New York Judge Grows Protest Beard Over Salary Issue

Where Are Our Judicial Pay Raises?

August 30th, 2011

City of New York Once Again Rebuked by Appellate Court; City Answers Stricken

The City of New York has once again been shot down by an appellate court for failing to provide discovery in personal injury actions where it is a defendant. In two separate actions last week the Appellate Division First Department reversed lower court rulings that had failed to strike the Answers of the City for non-compliance. The appellate court granted automatic wins for the plaintiffs after years of being frustrated by City failure to provide discovery.

Last year I wrote about one of those cases, Elias v. City, a trip and fall case where the city had repeatedly ignored discovery orders.The Appellate Division First Department slammed the City with a $7,500 sanction. The Appellate Division, now further disgusted by the City’s lack of compliance, wrote:

Although we previously directed defendant to comply fully with the outstanding discovery requests and ordered it to pay plaintiff $7,500 as a penalty for the delay in complying (71 AD3d 506 [2010]), defendant has still failed to comply fully. Over a three-year period, the City has repeatedly failed to provide discovery, despite nine court orders and sanctions imposed by this Court. These circumstances “create[ ] an inference of willful and contumacious conduct” (Brewster v FTM Servo, Corp., 44 AD3d 351, 352 [2007]) and warrant the ultimate sanction of striking defendant’s answer.

…

In sum, although over three years had passed since plaintiff had first sought this discovery which is central to the prosecution of his action, and despite the nine court orders directing defendant to comply with outstanding discovery, the motion court acceded to defendant’s request to be given one more opportunity to provide the discovery. Defendant has offered no excuse for its failure to produce the documents. Apparently, the imposition by this Court of a significant sanction was not sufficient to deter defendant from continuing its cavalier noncompliance with court-ordered discovery. In our view, the history of defendant’s untimely, unresponsive and lax approach to complying with the court’s previous orders warrants the striking of defendant’s answer (see Byam v City of New York, 68 AD3d 798 [2009]).

See that citation to Byam at the end? That is a Second Department case that the First Department is citing to.

The newfound determination to hold the City accountable for discovery failures, the same as other litigants, has a deep history to it, and reflects a reversal two years ago in the patience that the courts have had with City cases. The City’s Corporation Counsel published a top 10 list of recommendations on how the courts could be made more efficient and asked that “Judges must be made more accountable.” He had a variety of “performance measures” in mind.

The appellate judges were not amused, and 18 out of 20 of the First Department judges castigated the City in an unprecedented letter to the New York Law Journal. That letter contained this passage, which should have been seared into the minds and conduct of the City’s laweyrs:

In fact, it is ironic that the Corporation Counsel blames the courts for a failure to deal appropriately with litigation delays, since it is the office of Corporation Counsel of the City of New York that plays a significant role in causing those undue delays. For one thing, there is always a backlog of ready city cases in the dedicated city parts, and, with each part being assigned only two city attorneys, neither plaintiffs’ attorneys nor the trial judges have the means to ensure that ready cases can proceed immediately to trial; the city alone wields that authority.

A vast amount of inefficiency impeding the resolution of litigation is also created by the city’s oft-demonstrated cavalier attitude toward its discovery obligations. The city’s almost routine failure to timely and fully cooperate with its discovery obligations, even in the face of repeated court orders, is regularly confronted by city part judges attempting to solve the city’s intransigence (see e.g., Lewis v. City of New York, 17 Misc. 3d 559 [2007]).

The City was being hoisted up on its own petard, claiming that the Courts were infeffcient while itself causing delays. While the First Department judges had oft times given the City a break when it came to its past failures — “[A]s a rule, our courts give far more leeway to the city than we typically do to other defendants in civil actions — that time has now clearly come to an end.

The second case the Court decided last week on the subject was Henderson-Jones v. City of New York, in which 10 police officers entered her home without a warrant, found marijuana, arrested her, subjected her to strip searches, and detained her for 30 hours before she was released without charges. The plaintiff was able to identify two of the officers by remembering their badge numbers. One repeatedly refused to show up for deposition and the City claimed it could not identify the others.

Both the First and Second Departments have clearly weighed in on the City’s repeated failures and delays, and it seems, a new era of accountability is being forced upon it.

(hat tip — New York Law Journal)

August 23rd, 2011

Earthquakes and Labor Laws (Sometimes, government works)

I was in my office on the 17th floor when I felt the building start to sway. I wasn’t a happy camper.

Quickly jumping on Twitter I saw I was not alone, and within a minute or two I knew that today’s earthquake was up and down the east coast. Then I waited for the damage reports. The injured. The dead. The collapsed buildings. I wasn’t alone. Mayor Bloomberg put out a statement that read, in part, “our thoughts in New York are with those who were more directly affected by this natural disaster.”

A 5.8 quake may not be too much of a big deal if you live in a quake zone and your buildings are designed for it, but we aren’t known for moving the earth in such fashion. And so we waited for the information to come in.

And you know what? Nothing happened. There was no disaster.

Why? I’ll tell you. We have pretty good building codes and labor laws. We have people that enforce them. That’s our tax dollars at work, and working properly.

And I mention labor laws because they go hand in hand with building codes. One is designed for building safety and the other for worker safety. If builders think they can skimp on one if the laws are lax, then they probably think they can skimp on others. But they can’t. Skimping ain’t allowed.

Each year I go to Albany to lobby the legislature and each year our labor laws are fought against tooth and nail by construction companies looking to skimp on the safety of our laborers. We have strict liability here in New York if a company doesn’t provide proper safety to the workers and the workers are hurt. And we therefore have few accidents relative to the size of the city. If it ain’t broke, goes the old saying, don’t fix it.

Today we saw government work. And we saw our safety laws work. In a day and age when screaming about slashing the budgets and laws is a popular topic, it’s something to think about.

August 15th, 2011

Hosni Mubarak, O.J. Simpson, and Cameras in the Courtroom

Why am I not surprised? A judge killed the live televised trial feed of former Egyptian President Hosni Mubarak. Why? Because “after a chaotic session in which lawyers pushed, shoved and scuffled to get on television.”

We’ve seen this act before. The never-ending O.J. Simpson trial seemed to go on forever for similar reasons: the lure of the camera. And the chief culprit at that time seemed to be Judge Lance Ito, enjoying the fame of the trial, and being incapable of shutting down the circus when a cross-exam that should have gone on for an hour or two, went on for days.

From the article on the Mubarak trial:

Lawyers for the victims’ families bickered over their turns to address the judge and came close to exchanging blows with Mubarak supporters, all in front of the television cameras. Some among them just waved and smiled to the cameras.

“The decision is meant to stop the lust (that) people in the courtroom are showing for getting on television,” said lawyer Mukhtar Noah, who represents the families of more than 200 victims.

Here’s a suggestion: Get a judge that knows how to create a schedule for the courtroom, and when people don’t obey them, find them in contempt of court. While there may be other problems with television cameras (such as the effect on witnesses), the effect on lawyers is far easier to control. Judges always have the tools to govern their courtroom at their disposal. They should use them.