A New Year's Resolution

A fellow blogger on the End of Esq. site (Chronicling the Collapse of the Legal Profession in America) has just made a committed resolution.

"I resolve to expose the American Bar Association as a fraud on the profession and to work vigorously throughout the year to strip it of its law school accreditation function. The ABA has betrayed the Main Street practitioner and is on a campaign to globalize the practice of law, which, if successful, will mean hundreds of thousands of legal jobs lost here in the United States and the consolidation of the legal profession into a series of gega multinational firms where human capital is purchased wherever it is cheapest.

**** ***** *****

Everywhere I go I hear complaints from lawyers about the supply/demand imbalance, the threats of outsourcing and the utter siege the practice of law has become. Lawyers are fed up with scraping by or working around the clock for slave wages and see the profession collapsing before their eyes. They have no faith in the elders of the profession and why should they? The big firm lawyers and pampered princes have made the profession a miserable way to make a living and allowed the industry to be flooded by more and more lawyers. No law school student contemplates that a municipal worker like a fireman or garbage collector will have a more enjoyable and more profitable life than he, but that is the sad reality. In a span of 25 years, the legal profession has become poop.

2009 is the year we push back. Join us."

http://endofesq.com/?p=784


How to push back? By keeping the story alive. Here's an email I received yesterday from a woman at the Washington Post.

"Hi. I'm working on a story about projections that unemployment among those with a BA or higher degree is about to hit record highs.
I was wondering if you are hearing from out of work folks with JDs and what you're hearing, whether they are finding it hard to find work. How hard is it to get temp lawyer work? Is it getting more competitive?
Are there folks at some of the legal temp agencies you recommend I talk to?
Any help is appreciated. Thanks."

Share your thoughts in the comments section, or email me and I will provide you with her contact information.


Also, if you haven't done so already, send a message to the ABA by voting for this blog in the ABA's annual blog contest. Voting ends on the 2nd.

http://www.abajournal.com/blawgs/blawg100_2008/careers

2008 Beastly Behavior Award - David Perla

"David Perla stated that American lawyers typically hired to perform document review on major litigation have minimal skills and zero motivation. In contrast, Pangea3 can attract the best and the brightest young lawyers in India, fluent in English and trained in English common law. Perla said clients have held "bake-offs" in which the Pangea3's Indian lawyers were asked to perform the same tasks as U.S. contract lawyers. He said the Indians soundly trounced the Americans."

Meanwhile, rates are dropping like a rock in NYC, as we have to compete with unlicensed foreigners.

http://newyork.craigslist.org/mnh/lgl/973909667.html

French Prenuptial Agreement Adopting "Separation of Estates” Regime Constituted Waiver of Equitable Distribution.

Court of Appeals Holds French Prenuptial Agreement Opting out of “Community Property” Scheme in Favor of a “Separation of Estates” Regime Constituted Waiver of Equitable Distribution. Error to Preclude Recovery of Counsel Fees to Oppose Affirmative Defense Predicated on Prenuptial Agreement.


In Van Kipnis v Van Kipnis, --- N.Y.3d ----, 2008 WL 5244630 (N.Y.) the Court of Appeals held that the parties' foreign prenuptial agreement precluded the equitable distribution of certain property under New York law, affirming the courts below. Plaintiff wife and defendant husband were married in France in 1965. At the time of the parties' marriage, the wife was a Canadian citizen from Quebec studying at the Sorbonne and husband was a citizen of the United States, having recently completed college. Prior to the marriage ceremony, wife had a "Contrat de Mariage" drafted under the French Civil Code and arranged for legal counsel to explain the terms of the prenuptial agreement in English to husband. The agreement was executed by the parties on September 30, 1965. Under the provisions of the Contrat de Mariage, the parties opted out of the community property scheme (the governing custom in France) in favor of a separation of estates regime. In relevant part, the agreement provided: "The future spouses declare that they are adopting the marital property system of separation of estates, as established by the French Civil Code. "Consequently, each spouse shall retain ownership and possession of the chattels and real property that he/she may own at this time or may come to own subsequently by any means whatsoever. "They shall not be liable for each other's debts established before or during the marriage or encumbering the inheritances and gifts that they receive. "The wife shall have all the rights and powers over her assets accorded by law to women married under the separate-estates system without any restriction." After the wedding, the parties moved to New York where they resided during their38-year marriage. The Husband was employed in finance while wife worked as a professor at Cooper Union and later as a cultural counselor for the Quebec government. The Wife was also the primary caretaker of the parties' two children, now emancipated. Throughout their marriage, the parties maintained separate accounts and assets, with the exception of the joint ownership of their two homes--a $625,000 house in Massachusetts and a cooperative apartment in Manhattan valued at $1,825,000. In 2002, the wife commenced an action for divorce and ancillary relief. Before trial, Supreme Court granted husband's motion to amend his answer to assert the 1965 prenuptial agreement as a defense to wife's equitable distribution claims. Supreme Court appointed a Special Referee to conduct a hearing on the issues of equitable distribution, maintenance and counsel fees. The Referee determined that the French contract provided for the separate ownership of assets held in the parties' respective names during the course of the marriage. As a result, the husband retained his liquid assets of approximately $7 million and wife kept her assets ranging from $700,000 to $800,000. As to the jointly held properties, which the parties agreed were subject to equitable distribution, the Referee recommended that the wife be awarded the Manhattan apartment, together with $75,000 in reimbursement for repairs, and that the husband be awarded the country home in Massachusetts. The Referee proposed that the wife receive $7,500 per month in maintenance until either husband or wife dies or the wife remarries. The Referee concluded that legal fees expended in connection with wife's challenge to the prenuptial agreement were not compensable under Domestic Relations Law 237. After deducting that portion of wife's claim for counsel fees attributable to contesting the agreement, the Referee awarded wife $92,779.57 in attorneys' fees. Supreme Court confirmed the Referee's report. The Appellate Division affirmed , with one Justice dissenting. The Court of Appeals modified. The Court of Appeals rejected the wife’s contention that all of the parties' property should be subject to equitable distribution under Domestic Relations Law 236(B)(5) because the 1965 agreement, drafted and executed in France, was intended to apply to property ownership during the course of the marriage, but not to the distribution ofproperty in the event of a divorce. In her view, the primary purpose of theagreement was for each spouse to avoid liability for the other's debts. The Court of Appeals noted that it is well settled that duly executed prenuptial agreements are generally valid and enforceable given the "strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements" (Bloomfield v Bloomfield, 97 N.Y.2d 188, 193 [2001]. Prenuptial agreements addressing the ownership, division or distribution of property must be read in conjunction with Domestic Relations Law 236(B), enacted in 1980 as part of New York's Equitable Distribution Law. The statute provides that, unless the parties agree otherwise in a validly executed prenuptial agreement pursuant to section 236(B)(3), upon dissolution of the marriage marital property must be distributed equitably between the parties while separate property shall remain separate. As relevant here, separate property is defined to include "property described as separate property by written agreement of the parties pursuant to subdivision three of this part" . Under the statute, a prenuptial agreement may include a "provision for the ownership, division or distribution of separate and marital property" and is valid and enforceable if it "is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded" (Domestic Relations Law 236[B][3]. The Domestic Relations Law therefore contemplates two basic types of prenuptial agreement that affect the equitable distribution of property. First, parties may expressly waive or opt out of the statutory scheme governing equitable distribution. Second, parties may specifically designate as separate property assets that would ordinarily be defined as marital property subject to equitable distribution under Domestic Relations Law 236(B)(5). Such property would then remain separate property upon dissolution of the marriage. In either case, the intent of the parties "must be clearly evidenced by the writing" .(Tietjen v. Tietjen, 48 AD3d 789, 791 [2d Dept 2008] ). Here, the parties' written agreement, adopting a "separation of estates" scheme,fell within the second prenuptial agreement category. The agreement specifiedthat separate ownership of assets applies not only to the property that each partyhad acquired at the time of the marriage, but also to property that they "may cometo own subsequently by any means whatsoever." It further assures that "wife shallhave all the rights and powers over her assets accorded by law to women marriedunder the separate-estates system without any restriction." The Court held that contrary to wife's argument, the Domestic Relations Law contains no categorical requirement that a prenuptial agreement must set forth an express waiver of equitable distribution.When read together, Domestic Relations Law s 236(B)(1)(d)(4) and (B)(5)(b)provide that assets designated as separate property by a prenuptial agreement willremain separate after dissolution of the marriage. That was the case here. The Court of Appeals agreed with the courts below that the agreement constituted an unambiguous prenuptial contract that precluded equitable distribution of the parties' separate property, rendering it unnecessary to resort to extrinsic evidence.

The wife also argued that the courts below erred in precluding her recovery of legal fees under Domestic Relations Law 237 for services provided in opposing her husband's affirmative defense predicated on the prenuptial agreement. The Court of Appeals agreed with her. Neither party sought to set aside the prenuptial agreement. Instead, their dispute centered on whether the terms of the contract applied to the ownership of assets upon divorce. In this respect, her request was similar to the fee application inVentimiglia v. Ventimiglia (36 AD3d 899 [2d Dept 2007] ), where attorneys' feeswere awarded to a party who contested her spouse's affirmative defense based on anantenuptial agreement. It held that remittal to Supreme Court for reconsideration wasnecessary because this portion of wife's fee application should not have beenexcluded as a matter of law.

Happy Holidays

Thanks for all the kind feedback on my last post. One of my goals for 2009 is to actually dedicate some time to reviving this, so wish me luck.

Happy and healthy holidays to everyone. I hope you made the most of the office holiday parties...

Merry Christmas

"There is a new staffing agency in New York City called the Vinmar Agency (http://vinmarstaffing.com/). Apparently, they asked contract attorneys to cancel their Christmas plans. Many people canceled plans to go home to see their families because they needed the work. Three days into the project they fired everyone. Merry X-mas, indeed."

The ABA Is Killing Us

The document reviewers have already been cooked and carved up for Thanksgiving.

Think you can run off to shitlaw to avoid the slaughter? Think again. The Indian LPO's are now aggressively going after the foreclosure banks and insurance companies for work.

"Another firm, Pangea3 LLC., says its revenues in India doubled in size in the first quarter, and doubled again since then.

Firms have already started handling related reviews of bank assets. UnitedLex, for example, has seen this area of its business grow by 50% since late March, according to Ajay Agrawal, founder and chief solutions officer. 'There are millions of assets shuffling hands, and a lot of work,' says Agrawal, who specialized in asset-backed securities as a lawyer in the US.

It’s not just the highly technical work of reviewing complex derivatives that offshorers are gunning for. Home foreclosures and individual bankruptcies have generally been processed by local lawyers. Bits of the work, on loans held by banks with captive centres in India, have previously moved offshore. But now, with almost 280,000 foreclosures in October alone according to RealtyTrac Inc., up 25% from the same month last year, and up 5% from the month before, even after several states mandated delays on foreclosures, the momentum for offshoring has clearly been building up.

'Volume is a huge driver over the past 18 months, and it still has not plateaued,' says Agrawal, who claims that the foreclosure and bankruptcy processing business at UnitedLex took off at the beginning of the year, and has doubled every quarter since.

Bangalore-based Clutch Group is aggressively pitching itself for a newer piece of this market on foreclosures, one that requires court intervention and typically hasn’t come offshore yet. Lenders spend around $1,000 on this type of foreclosure in the US, and the firm estimates that around 60% of the work done before the lawyers file the case is now segregated and can be brought to India."

http://www.livemint.com/2008/11/26010816/In-downturn-litigation-bonanz.html

The S + C Taxi Desk

"The guy at the Sullivan taxi desk is arrogant, nasty and disrespectful to contract attorneys--he has a contempt for us. I am not sure if his name is Colin, but I think it is.

A call to contract attorneys working at 55 Water Street needs to be made so that he can straighten up his anger and act. Because of us, he has work...if he does not like us, he can find something else to do.

Please ask people to expose him. There is no need to take his abusive nor displaced anger."

Appealing, to Infinity and Beyond

Earlier this week, the Appellate Division, 2d Department, granted defendant's leave to appeal from the decision of the Appellate Term in Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc.3d 1 (App. Term, 2d Dep't, 2008).

You'll recall that this decision involved, inter alia, a question as to whether a follow-up verification request done only 27 days after the first request is proper. You'll also further note that the No-Fault Regulations, as per 11 NYCRR § 65-3.6(b), require that a follow-up request be made between 30 to 40 days following the initial request: "At a minimum, if any requested verifications has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested..."

Presumably, the appeal is intended to deal with this issue, and particularly the differing interpretations offered by the majority and the dissent concerning New York & Presbyterian Hosp. v. American Transit Ins. Co., 287 A.D.2d 699 (2d Dep't, 2001). In sum, a majority of the Appellate Term (Pesce and Steinhardt, in particular) in Infinity Health Prods. found that the Am. Transit decision "does not permit defendant to disregard the regulation governing the timing of a follow-up request for verification."

Justice Golia, ever a contrarian, dissented in Infinity Health Prods. and opined that in Am. Transit, the Appellate Division found that an early follow-up verification request (27 days later, not 30-40) was proper.

I think Golia missed the mark this time. It appears to me that the issue of the follow-up request's earliness was simply not litigated. The following sentence makes this clear to me: "Here, the defendant timely requested additional verification of the claim from the respondent by letter dated October 5, 1999, and when such verification was not received within 30 days, it sent a timely follow-up letter dated November 1, 1999." 287 A.D.2d at 700. This sentence makes no sense, as November 1, 1999 is obviously less than 30 days from October 5, 1999. Since 30 days had not elapsed, neither the Court nor American Transit could properly come to the conclusion that the "verification was not received within 30 days."

The only way the Appellate Division can get away with making such illogical statements is that they are limited to what issues are actually being litigated and have been preserved for appeal. The plaintiff in the case may not have ever, either before the Supreme Court or the Appellate Division, raised the issue of the follow-up request being too early. Indeed, Golia's states in his Infinity Health Prods. dissent that the issue was never raised by the parties in Am. Transit. 21 Misc.3d at 5. If so, then the App. Div. really had no place raising this issue sua sponte, and so it is no surprise that they didn't.

In short, the effect of early follow-up verification requests was never litigated in New York & Presbyterian Hosp. v. American Transit Ins. Co. The Appellate Term was thus not bound by this "precedent" in deciding Infinity Health Prods., and, in my opinion, the majority came to the proper conclusion upon doing so. For whatever reason, Justice Golia chose to act as if the Am. Transit is binding, but this is entirely illusory.

There's simply no need to second-guess the fact that the Insurance Department put an explicit timeframe on follow-up verification requests. Under the Regulations, they must be made from 30 to 40 days after the first request, assuming the verification was never received. A failure to abide by the timeframe on the side of lateness should have the same effect as being too early: a waiver of the request. There's no logical reason that a violation in one direction should be treated differently than a violation in the other direction.

Let's hope that the Appellate Division uses this opportunity to give effect to the Regulations as written and clear up a piece of outdated and misunderstood case law.

--

P.S. My thanks to David Barshay, Esq., for shaming me into coming out of blogging retirement every once in a while.

New Attorney Conduct Rules for New York

On December 17, 2008 Chief Judge Judith S. Kaye and the Presiding Justices of the Appellate Division announced a new set of attorney conduct rules for New York, effective April 1, 2009. The Rules of Professional Conduct, which will replace the existing Disciplinary Rules, introduce a number of important ethics changes for New York lawyers and are set forth in a new format and numbering system that are based on the ABA Model Rules.
Highlights of significant ethics changes contained in the new Rules of Professional Conduct are set forth below:
Adoption of ABA Model Rules Format This standardized format, used in 47 other states, is organized according to a lawyer’s role as litigator, counselor, negotiator, etc., and will facilitate a lawyer’s ability to assess specific ethical issues in context. It has generated a national body of ethics law that will ease ethical research and guidance by New York lawyers as well as out-of-state lawyers seeking to research and follow New York’s rules.
Scope of Representation and Allocation of Authority Between Client and Lawyer (Rule 1.2)
Rule 1.2 codifies a lawyer's obligation to abide by a client’s decisions regarding the objectives of representation, including whether to settle a civil matter or to enter a plea, waive a jury trial or testify in a criminal matter.
Fees and Division of Fees (Rule 1.5)
Rule 1.5(b) requires a lawyer to communicate fees and expenses to the client before or within a reasonable time after commencement of representation, thereby extending the current letter of engagement rule (22 NYCRR 1215), without the necessity of a writing, to all matters currently excepted under that rule.
Confidentiality of Information (Rule 1.6) and Conduct Before a Tribunal (Rule 3.3)
Rule 1.6(a)(2) permits disclosure of confidential client information impliedly authorized to advance the client’s best interests when it is reasonable or customary.
Rule 1.6(b) permits a lawyer to reveal or use confidential client information necessary to “prevent reasonably certain death or substantial bodily harm.”
Rule 1.6(b)(4) permits a lawyer to reveal confidential information to the extent necessary to secure legal advice about compliance with ethical rules or other laws.
Rule 3.3 requires a lawyer to correct a false statement of material fact or law previously made to the tribunal by the lawyer or the client and to take necessary remedial measures, including disclosure of confidential client information.
Rule 3.3 requires a lawyer who knows that a person intends to, is or has engaged in criminal or fraudulent conduct related to the proceeding to take reasonable remedial measures, including disclosure of confidential client information.
Current Clients: Specific Conflict of Interest Rules (Rule 1.8) Rule 1.8(c) prohibits a lawyer from soliciting any gift from a client, including a testamentary gift, for the benefit of the lawyer or a person related to the lawyer; or from preparing on a client’s behalf an instrument giving a gift to the lawyer or a person related to the lawyer, unless the lawyer or recipient of the gift is related to the client and a reasonable lawyer would find the transaction fair and reasonable. In a business transaction between lawyer and client, Rule 1.8(a) requires the lawyer to advise the client in writing to seek the advice of independent counsel and to give the client a reasonable opportunity to do so; and the client must give informed written consent that addresses the lawyer’s role in the transaction and whether the lawyer is representing the client in the transaction. Special Conflicts of Interest for Former and Current Government Officers and Employees (Rule 1.11) Rule 1.11 governs the lawyer’s obligations based on conflicts presented when a lawyer moves from government to private employment and vice versa, and provides that such conflicts may be waived by the government entity upon informed consent. Duties to Prospective Clients (Rule 1.18) Rule 1.18 governs a lawyer’s duties to a prospective client when that person and the lawyer ultimately do not form an attorney-client relationship. It applies the same duty of confidentiality owed to former clients. However, a lawyer or law firm may nonetheless oppose a former prospective client if the lawyer’s current client and former prospective client give informed written consent, or the law firm may do so if certain conditions are met, including timely screening of the disqualified lawyer and prompt written notice to the former prospective client. The protections of Rule 1.18 are expressly denied to a prospective client who communicates with a lawyer in order to disqualify the lawyer from handling a materially adverse representation in the same or a substantially related matter. Voluntary Pro Bono Service (Rule 6.1) Though not enforceable through the disciplinary process, Rule 6.1 reaffirms a lawyer’s responsibilities to provide at least 20 hours of pro bono legal services each year to poor persons, and to contribute financially to organizations that provide legal services to poor persons. Other Noteworthy Developments Rule1.3 (Diligence) mandates that a lawyer "shall not neglect" a legal matter and obliges a lawyer to “act with diligence and promptness” in representing a client. Rule 1.4 (Communication) codifies a lawyer’s duty to communicate effectively with the client, including keeping the client reasonably informed about the status of the matter promptly complying with a reasonable request for information. Rule 1.12 applies conflicts rules to arbitrators and mediators, other third-party neutrals and law clerks. Rule 1.14 provides guidance to a lawyer whose client has diminished capacity. It allows the lawyer to take action to protect the client from substantial physical and financial harm, and permits disclosure of confidential client information to the extent reasonably necessary to protect the client’s interests. Rule 2.4 deals with lawyers serving as third-party neutrals, such as arbitrators and mediators, and sets forth their obligations with respect to unrepresented parties. Rule 3.2 prohibits a lawyer from using means that have no substantial purpose other than to delay or prolong a proceeding or cause needless expense. Rule 3.9 requires a lawyer to alert legislators and administrative agencies as to when the lawyer is speaking as a paid advocate rather than a public citizen. Rule 4.3 sets forth a lawyer’s obligations when dealing, on behalf of a client, with a person who is not represented by counsel. Rule 6.4 sets forth a lawyer’s duties when participating in law reform activities that may affect the interests of the lawyer’s clients. Rule 8.2 expands the prohibition against false statements of fact regarding “qualifications” of judges or judicial candidates to include false statements about “conduct or integrity.” The new Rules of Professional Conduct are available at http://www.nycourts.gov/rules/jointappellate/ (Source: http://www.nycourts.gov/press/pr2008_7.shtml) (Last accessed: December 18, 2008)

Another Request

"Can you post this please?

I need to talk to a few contract attorneys for a big national story I’m doing on contract attorneys. Can someone please call me with their experience today or tomorrow?

Thanks much.

Julie Kay

Florida Bureau Chief
National Law Journal
954-468-2622
julie.kay@incisivemedia.com"

Rape Conviction Overturned for Lack of Specificity

This week, in People v Bennett (2008 NY Slip Op 09811 [2d Dept 12/09/08]), the Second Department overturned a rape conviction when the second-grade victim could only give a nine-month window for the date of the incident. The Court explained that while

a per se (nine-month) bar does not apply, a significantly lengthy period is a factor to be considered, with "proportionally heightened scrutiny" given to whether the People's inability to provide more precise times can be justified as against the important notice rights of the defendant (People v Sedlock, 8 NY3d at 539; People v Watt, 81 NY2d 772, 775).

At trial, the victim testified that the two incidents occurred about two weeks apart when she was in the middle of second grade. The first incident occurred when her mother was at the grocery store with the victim's brother. The second incident occurred when the mother took the brother to the doctor. The People should have inquired as to when the mother took the victim's brother to the doctor and/or should have sought to obtain the brother's medical records to narrow the time frame of the crimes as alleged. The defendant's ability to prepare a defense was further stymied by the fact that the victim testified that the incidents occurred in the middle of her second grade school year, which would have been during the winter, but the amended bill of particulars provided that the incidents occurred when the weather was warm. Under these circumstances, when the time period charged, namely seven months, approaches the nine-month period found to be per se unreasonable in People v Beauchamp (74 NY2d 639; see People v Sedlock, 8 NY3d at 538), the People are subjected to "proportionally heightened scrutiny" as to whether their inability to provide more precise times is justified (id at 539). There is no indication that the People inquired of the mother or of the doctor of the victim's brother regarding as to when the brother was treated.

As Assistant Monroe County Public Defender David Abbatoy (who brought Bennett to our attention) has noted, Bennett and the cases cited within make clear that the judge should not simply rely on the prosecutor's representations regarding the victim's intelligence,etc. The government should demonstrate its inability at a hearing. The judge should then make an independent determination as to whether more precise notice is required based on the complainant's age, etc. This should occur at a hearing with sworn testimony from the complainant. Perhaps we can call it a "Sedlock Hearing."

Is The Reaper Visiting The Staffing Agencies?

"Tom,

Can you post the following question:

Hi. I’m doing a story about contract attorneys for the National Law Journal and was wondering if anyone has heard of any staffing agencies that have closed in recent months or weeks.

Thank you,

Julie Kay
Florida Bureau Chief
National Law Journal
954-468-2622
julie.kay@incisivemedia.com"

Sallie Mae Really Sucks

"Just got dinged with a $25 forbearance 'processing' fee. You think Aunt Sallie would be content with her sky-high accruing interest. Even though Sallie Mae just received a 3.6 billion dollar bailout gift from the American taxpayers in the third quarter, looks like she doesn't want to turn around and share the holiday love by waiving the fee.

The Sallie Mae customer service operator was apparently from India. I wonder if any of her friends are working on any of our outsourced document review gigs."

The "DiscoverReady" Churn and Burn Continues

"We were told that this was going to be a 2-3 month project. Last night, just after several days of work, I got the call not to come in. They claim DiscoverReady 'overstaffed' our project. This is nuts. These people really know to exploit the suffering of a desperate economic situation. DiscoverReaady sucks."

The "Lex-Pollution" Tax Audit

"TTT, here is the language of the warning I received:

By now you would or should have received in the mail a standard letter from Lexolution on Lex letterhead which reads: we are being audited by the NYS Taxation and Finance Department to determine compliance with the state's regulations regarding income tax withholding.

As part of the audit, we were asked to contact a number of current and former employees and request they complete form AU-7, the "Employee Wage Statement" (enclosed.)

This form lays out wages paid by Lexolution to you in 2005, 2006 and 2007 on which either

1) no state tax was withheld, corresponding to pay periods when you requested that you be classified as "exempt" in our payroll system, or

2) due to changes in withholding status you asked us to implement during the withholding period, it appears that an incorrect amount of tax was withheld.

On the form, you are asked to certify that these wages were reported on your NYS tax returns in the appropriate years, and that you have paid the taxes due on these wages.

Please return the AU-7 form in the enclosed post paid envelop, by 12/12/08. If you do not return the AU-7, we will note that in our response to the auditor.

I hope they audit and fine Dickhead Osman for his persistent abuse and violations.

What about an OSHA and/or NYC Fire Department inspection of Lex sites? That would be awesome to have them up to code.

Bastards!"

Second Circuit Recognizes Importance of Defendants' Right To Examine Prosecution Witness's Racism

In two cases, the Second Circuit Court of Appeals issued rulings emphasizing the rights of defendants to cross-examine prosecution witnesses regarding evidence of their racial or ethnic bias.In Brinson v Walker (--- F.3d ----, 2008 WL 4890153 [2nd Cir 11/13/08])the court granted habeas corpus relief and vacated a New York state robbery conviction whee the New York trial judge precluded the black defendant from presenting evidence (both through cross examination and by extrinsic evidence) that the complainant harbored strong racial bias towards blacks. The Court first reviewed the evidentiary right to present evidence or bias and concluded that

where the racial bias sought to be exposed is of sufficient intensity that it is reasonably likely to result in the falsification of the witness's testimony against the accused, a preclusion of cross-examination on the ground that racial bias is general and not specifically directed against the defendant is an unreasonable application of Supreme Court decisional law.

Applying the five factor test set forth by the Supreme Court in Delaware v. Van Arsdall 475 U.S. 673 the Court ruled that the error was not harmless, given the critical role of the complainant's testimony and the absence of other means to establish this bias.

Similarly, in U.S. v. Figueroa --- F.3d ----, 2008 WL 4911158 [2nd Cir 11/18/08], the Court held that an Hispanic defendant's constitutional right to confrontation was violated when the federal district court judge precluded cross-examination of a prosecution witness about the witness's swastika tattoos. The Court explained a person choosing to have swastika tattoos tends to suggest that the person holds racial, religious, or ethnic biases and this evidence of bias is relevant and admissible under Federal Rule of Evidence 402. However, given the other evidence of guilt, the Court found this erroneous violation of the right to confrontation to be harmless beyond a reasonable doubt.

Down in the Data Mines

Check out the following article from the ABA Journal:

http://www.abajournal.com/magazine/down_in_the_data_mines/


Speaking of the ABA, don't forget to vote for Temporary Attorney in the 2008 Blawg100 competition. Looks like we are in stiff competition against the Clerkship Notification blog. As someone on JDU so aptly noted,

"How the fuck is the 'Clerkship Notification Blog' ahead of Temporary Attorney? Who the fuck even cares about what judge some ivy league dickwad is going to be sucking off next term? It's almost insulting because it's as though a whole class of legal workers are being ignored and swept under the rug. I wouldn't be surprised if they rigged the "voting" to ensure that TemporaryAttorney doesn't win.

By voting TTT to the top, the plight of the vast majority of today's law grads will at least get some attention from the ABA. They would like to go on believing that the big issue of the day in the minds of recent law grads is who gets a judicial clerkship, but we have to show them just how bad today's legal job market really is.

FUCK THE ABA. Spread the message through as many of their own channels as possible!"

http://www.abajournal.com/blawgs/blawg100_2008/careers

Slain by a Madman

Didn't feel like posting this, but it is the current talk of temp town.

How awful to toil away in some soul-crushing, paper-pushing job, and then to be shot dead in cold blood by some crazed lunatic on your weekend off, and then, to top it all off, be brandished as some kind of fringe freak as your death is sensationalized on the cover of some right wing tabloid rag.

http://www.nypost.com/seven/12042008/news/regionalnews/lawyers_deadly_secret_142622.htm

Molineux and Multiple Count Prosecutions

In People v Giles (2008 NY Slip Op 09433 [12/2/08]), the Court of Appeals issued an important decision regarding the application of Molineux. Specifically the Court held that even when evidence of other crimes may be relevant and admissible to some charged counts, the trial court in admitting such evidence is required to give that limiting instructions advising the jury that while the evidence may be relevant to some charges, it must not be considered regarding the other counts.

While the Court approved introduction of detailed evidence regarding how stolen property the defendant possessed came to be stolen, it disapproved the use of such evidence to show that unrelated activity was an attempted burglary. In reversing some counts, the court found that possession of the proceeds of prior burglaries "has no bearing other than to show that defendant is of a criminal bent or character and thus likely to have committed the crime charged" with regard to a currently charged attempted burglary. Thus, the Court held that the trial court

erred by failing to issue a limiting instruction to cure the potential
prejudicial effect of the evidence regarding the uncharged burglaries on the attempted burglary and possession of burglar's tools counts. Supreme Court should have advised the jury that it could consider the evidence for the possession of stolen property counts, but that it could not consider the prior burglaries with respect to the attempted burglary and possession of burglar's tools counts.

The Court also arguably acknowledged, sub silentio, that the viability of
the persistent felony statute is uncertain (it declined to reach the
issue), even though the Court of Appeals has consistently upheld the
statute against Apprendi (Apprendi v New Jersey, 530 US 466 [2000) claims
(see People v Rivera, 5 NY3d 61 [2005]. The post-Rivera decision of the
United States Supreme Court in Cunningham v California, 549 US 270 [2007] suggests that Rivera might not be the last word on the constitutionality of the New York persistent sentencing law.

Evelyn Louie: "Times Are Tough"

"I am working at De Novo right now. I feel very lucky to have a job. Evelyn came into our office last week to let us all know that times are tough and all new projects will be staffed at a $35 flat rate, as the market is so tight. Also, all other 'perks' like free lunch on Fridays have been cut.

Just an update for your site. It would be good to hear what other agencies are saying. The rumor at De Novo is that we maybe seeing some agencies fold.

Hope your employed!"