Newsletter. President s Message. What s Inside. Janet M. Silver Hinman Straub, P.C. March 2015

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1 Albany County Bar Association Newsletter March 2015 President s Message Janet M. Silver Hinman Straub, P.C. Thank you to everyone that attended this year s Court of Appeals Dinner and helped make it one of the largest dinners in recent memory. We were honored to have the Justices of the Court of Appeals with us, but this year s event was even more special, since we were able to celebrate the confirmation of our own member, the Honorable Leslie E. Stein, as well as the Honorable Eugene M. Fahey. We could not have planned the timing of their confirmation and our annual dinner any better. We were also fortunate to have the Honorable Jenny Rivera, as our guest speaker, on the second anniversary of her confirmation to the Court. As part of her speech Judge Rivera paid tribute to the dedication, hard-work and friendship provided by the Honorable Victoria A. Graffeo, during her time on the Court. It was a well-deserved tribute and we look forward to honoring Judge Graffeo by commissioning a portrait that will be placed in the Albany County Courthouse. I also want to thank those members that accepted last month s challenge and attended this year s dinner or encouraged young attorneys to attend. This year there were a lot of new faces and increased support from firms that purchased tables for their attorneys was very evident. It also looked as though people were having a lot of fun. I hope this trend will continue next year and encourage you to put a reminder on your calendar now for next February. We have two events in the next few weeks that I would like to highlight. The first is a Happy Hour the ACBA s Small and Solo and Young Lawyers Committees are co-hosting with the Albany Law School Alumni. This Happy Hour will take place on March 26, beginning at 6:00 PM at the Hilton Albany. The event is open to all members, no pre-registration required. Hopefully by March 26th, we will have temperatures above zero and grass starting to show! On April 2 nd, we will be honoring Sol Greenberg who was District Attorney in Albany County for over 25 years and a member of the Albany County Bar Association since Mr. Greenberg has the distinction of being one of the longest serving District Attorneys in New York State as well as our longest standing consecutive member. We were recently approached by former district attorneys who were hoping to honor him and are pleased to have the opportunity to celebrate his service but also his dedication to our Association. Lastly, I am interested in hearing from our members on the types of programs and functions you would like to see this year. Whether it be social functions, volunteer opportunities or discussions on legal topics, it is important for the Association to offer programs that meet the needs of our members. Please do not hesitate to send me an or give me a call ( ). Challenge: We are in the midst of our annual membership drive. This year I ask you to consider a sustaining membership. We currently have over 1300 members, however only 300 are sustaining. Sustaining membership not only provides additional benefits but demonstrates commitment to the Association. The Board of Directors has maintained dues for many years now and increased support through sustained membership enables the Association to continue to invest in programs and services. Our goal is to increase sustained membership by at least 10 percent this year. Please help us achieve our goal! We have also heard from many of our members that local law firms are no longer covering the costs of bar memberships or limiting membership to one organization. I would like to encourage firms to consider covering the costs of membership for one or more associations. It is a win-win for law firms and your employees. Membership dues are a business expense and can also save money on continuing education and attendance at functions (such as the Court of Appeals), where the cost of attendance is greater for non-members. This is also a great way to encourage young attorneys, who are struggling with paying back law school loans, to get involved. What s Inside Executive Director... 2 Change of Scene... 2 Attorneys in the Public Service... 2 Pro Bono Corner...5 Small and Solo... 7 Classified... 7 Health... 8 Practicing Law and Wellness... 9 Tax Traps Immigration Law Update...12 Matrimonial Law Update Attorney Marketing & Business Bench & Bar...15 Judge Duggan...16 CLE Calendar Labor & Employment Practice Dues Statement Referral Statement... 22

2 2 Executive Director s Message Pro Bono Corner Stacey Whiteley Executive Director Spring is nearly here and so is the end of our 2015 Membership Drive! If you haven t renewed your membership, please do so today. Our 2015 Membership Drive will come to a close on March 31 st. Call the office or go to the website to renew. It s quick and easy and it will allow you to continue receiving this newsletter delivered every month, member pricing on our informative CLEs and special events, and a whole host of other benefits from companies such as Avis Rental Cars, Accu Networks IT services, CBS Coverage Group, Citizens Bank and Staples. Also you will be included in our Member Directory which will be renewed this year! Check out the Members Benefits webpage on our ACBA site for more information about how to take advantage of these discounts. I d like to thank the ACBA Board and the Court of Appeals Judges for a special Court of Appeals Dinner this year. It was my first one solo and it was a lot of work, but so enjoyable! The staff here at the ACBA really pulled together and once again did a terrific job with making sure everything went off without a hitch. We are already planning next year s and cannot wait to get all dressed up and celebrate in style in 2016! Mock Trials are underway and I encourage you to become involved. If you ve never been to a Mock Trial before, stop by Albany County Family Court at one of the dates listed on our calendar to observe the teams compete. I promise you ll be amazed at the skill these high school students display in the courtroom. And then perhaps next year, you can volunteer to be a judge or assist a local school prepare for competition. And be sure to join us in celebrating the ACBA s longest reigning member, the Honorable Sol Greenberg. Mr. Greenberg has been an ACBA member since 1948, totaling 67 years of continued ACBA membership! We will be honoring Mr. Greenberg on April 2 with a luncheon at the Fort Orange Club. Tickets can be purchased online, by calling the office, or by mailing in the form found in this newsletter. Keep thinking spring, and thank you for your continued membership! Pictorial Directory Don t forget to stop by our office, 112 State St., Suite 1120, to pick up your Directory. The fee is $20 to pick it up, or add an additional $6 to have it mailed to you. This is a great desktop reference! Change of Scene Kenneth L. Gellhaus, a 20-year partner with McNamee, Lochner, Titus & Williams, PC, left the firm in February 2015 to take position with the Office of the Attorney General of New York State as an Assistant Attorney General within the Oil Spill Litigation Unit. Lianne S. Pinchuk, Esq., Pro Bono Attorney Jessica Backer Brand Eileen Guinan, Pro Bono Coordinator Pro Brono Opportunities Jessica Backer Brand Pro Bono Attorney Looking to try something new that may be slightly outside your comfort level? No, we are not suggesting taking up helicopter skiing or mastering Julia Child s Cassoulet - although both are good alternatives for dealing with this blustery winter! But how about venturing outside your regular practice area to take on a pro bono case through the Albany County Bar Association? Our pro bono direct representation program offers Members the unique opportunity to provide representation, with our support, in an area outside their regular practice field and for newer attorneys to interact with clients and see a case from inception to resolution. Our City Court program affords pro bono attorneys the opportunity to represent a client in City Court, resolving small claims and housing matters. Even if your knowledge of real property issues is limited to a vague recollection of the warranty of habitability from first-year property class, we can provide the legal support to assist with your representation of a tenant from the initial filing to the conclusion of the case. Or, volunteer for the Attorney for a Day Project, a program staffed once a month with ACBA attorneys representing tenants facing eviction. Worried your litigation skills aren t sufficiently honed for Family Court pro bono representation? Rest assured that often cases settle, in no small part because of the adroit client counseling and negotiation skills of the attorneys. In Family Court, pro bono attorneys are needed to help clients in custody, visitation, adoption and child support matters. Additionally, members have the opportunity to volunteer just a few hours of their time assisting litigants complete petitions at the Family Court Help Center. If going to court just isn t your thing, perhaps you could help with community outreach, such as providing brief legal advice to homeless shelter residents, helping at the Regional Food Bank or participating in the upcoming Law Day Run in May. Should you be interested in more information about our pro bono work and opportunities to volunteer, please do not hesitate to contact us. We are happy to work with you to find an opportunity that best fits your skill set, time constraints and interests. In the meantime, let us know if you master that Cassoulet!

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5 Attorneys in the Public Service Committee Co-Chair: Daniel J. Hurteau, Esq., Nixon Peabody, LLP, Co-Chair: Lisa R. Harris, Esq. Senior Counsel to the Senate Majority Republican Conference, Why Introverts Make Good Lawyers By Lisa R. Harris,Esq. When I choose my career path at an early age, I took into account my aversion to social interaction. I thought, I ll practice contract law and negotiate elaborate, time consuming and expensive contracts for professional athletes and facilitate commercial real estate transactions. I never thought I would see the inside of a courtroom, until I did and fell even more in love with the law. However, there was one very large problem. I am an introvert. I am not shy or as my mom used to say, she s reserved. I am a thinker, a watcher, an observer, highly sensitive and a need-timealoner. I have managed to navigate this trait while pursing personal and professional passions. However, it was only in the last few years that I have truly examined my introversion, embraced it and incorporated it into my life to achieve a balance that works. Oxford, McGill and Harvard Professor Dr. Brian Little is a renound public speaker on psychology and well being. Dr. Little is also an introvert. Dr. Little developed the Free Trait Theory. Dr. Little s theory asserts that we are all born with certain personality traits - introversion for example, but we can engage in public speaking, attend social events and act out of character in the service of core personal projects. This is why, in my opinion I am able to engage, connect in community with others, teach and advocate passionately. Introverts gain energy from solitude. 1 Introverts prefer one-on-one meetings, small groups and tend to reserve comment until they have had an opportunity to fully vet or think about a problem. Since external validation is not a strong motivating force for introverts, they will engage in work that is meaningful and worth their energy rather than seeking attention grabbing cases or positions. Id. Introverts prefer the more docile, controlled environment of their own heads instead of seeking large group processes. As I thought about this article, I began doing some research about introverts and the legal profession and found not only support for my theory that introverts make awesome lawyers but found a soul sister in the process. Christina Martini is a high powered partner with DLA Piper in Chicago and serves as the vice chair of the DLA Piper Chicago intellectual property group. Christina is also an author and a columnist. I found Christina s article titled, The Perks of Being 1 The Truth About Introverts- and why They Make Fabulous Lawyers, The Legal Balance, May 30, an Introverted Lawyer online and invited her to contribute to this month s article. I found out she too had read the book, The Power of Introverts in a World that Can t Stop Talking, by Susan Cain and it was a pivotal moment in both of our lives. The book boldly, and with scientific data, gives a voice to introverts and motivates me to proudly own my introversion. After only a few minutes on the phone, I knew right away she had something powerful to share with introverts in the legal profession who engage in multitudes of social interaction. In Susan Cain s book, she explains that introverts are capable of acting like extroverts for the sake of work they consider important, people they love or anything they value highly. So, although during our daily lives we are fully present and on, for one-third to one half of us, says Cain, this may not be our natural state. I asked Christina how do we deal with this? How do we take our highly sensitive, intellectual, would rather work alone than in a group selves and meld professions and passions that demand extroversion to expand our potential? Lisa: What gives introverted lawyers the biggest challenge? Christina: The legal profession has changed. In the past, once you mastered your craft, and then that was it, the business walked in the door. Now, you have to create and sustain relationships. Your success relies on the value and strength of your relationships. Lisa: Once we acknowledge our introversion, how do we assimilate this trait into our lives? Christina: Understanding that introverts may have a different approach to problem solving and team building and using that approach to expand instead of shrink opportunities. Emphasize your strengths of research, writing, intense focus and leverage those traits to best serve yourself and your career. Be mindful of your schedule and try to arrange meetings and events in an amount that is best aligned to add to instead of subtract from your energy. Try to take short breaks during the day or the week. Close your door or go for a walk and recharge in solitude. Lisa: Introverts seem to be very self-critical and put a lot of pressure on themselves to be extroverted. How do introverts workaround this? Christina: Get out of our heads and accept who we are. There is no right or wrong way to be, but acknowledging what inspires us and what drains us is vital. Introverts are thinkers and we think through and about everything. In order for us to advance our careers and serve our clients to the best of our ability we need to be attentive, engaged and yes, network. So, stop thinking and just do it. Develop a comfort zone for being outside your comfort zone. Lisa: What advice would you give to an introvert that wants to get out there and network or serve their community but feels like they just cannot go to another traditional event? Christina: Write a monthly article; do a monthly podcast or video on your area of specialty; donate your time doing legal research or writing briefs for a local not-for-profit; or put a box outside your office to collect supplies for a local shelter. These are effective ways of touching people without direct interaction. Lisa: Why do introverts make great leaders? Christina: Introverts make great leaders because they have strong listening skills; we are analytical; deep thinkers; deliberate and have a great deal of compassion. We all want to be heard and being able to listen and deeply think about information allows for a free flow of ideas and ultimately concept development and effective plan implementation.

6 6 Small and Solo Attorneys Unite! Classified Associate attorney position available at distinguished Albany law firm for associate with at least two years of experience in civil litigation with a strong background in research, writing, depositions and case management. We offer a competitive salary and comprehensive benefits package. Please submit a resume and cover letter to Co-Chair, Daniel Coffey, Esq. Bowitch & Coffey, LLC, Co-Chair, Sarah Gold, Esq., Gold Law Firm Warm winter greetings from the Small and Solo Attorney Committee. Amazingly spring may be in our sights, though hopefully the light at the end of this tunnel is not a train. For those of us who have taken to our homes and offices with the idea of not coming out before it thaws, we have a proposition to come out and have a drink at least. We will be co-hosting a Happy Hour with the Albany Law School Alumni on March 26 at the Hilton Albany with a cash bar and light fare. The Happy Hour begins at 6:00. Seeing as how we ve been previously preempted by an implosion, feel free to start a pool on the weather. It s a Thursday, so all bets are off. Regardless, a good time will be had, and we think you should join us. Website of the month: In the meantime, if you are stuck in your house and you are tired of binge watching TV and thinking more about reading a book, borrow from a local library. You say you d have to leave to do that? lets you borrow books electronically with your library card and lets you read it on your devices. You can listen to audiobooks, look at magazines, and watch videos all from the convenience of your desk. As always, we re here to make things easier for you in your practice. We d love to meet even more of you in If you d like to add to the conversation, join us on LinkedIn at: com/ m2w8odv Professional Office Space AVAILABLE 21 Everett Road Extension, Albany. Single office on first floor with plenty of parking. Shared conference room and kitchen available. 10 minutes from Albany County Court House and Family Court. $500 per month plus share of utilities and internet. Call Downtown Albany OFFICE SUBLEASE SPACE Professional A+ space available in existing legal office. One or more individual offices available. Reception, conference room, furnishings and shared services available. Starting at $ per month. Contact: (518) PROFESSIONAL Office Space Office space is available in an established law firm at 20 Corporate Woods Blvd., Albany, NY. Shared office amenities include receptionist, conference rooms, phone system, photocopiers and mail machine. Rent is commensurate with space and services. Up to 4 offices are available with space for files and support staff. If interested please contact Scott Adelmann at EXPERIENCE LEGAL SECRETARY - Albany area law firm. Previous experience in medical malpractice helpful but not required. Must have excellent communication, organizational and computer skills. Salary commensurate with experience. Interested candidates should send resume to P/T POSITION SOUGHT - Recently Left State Service - Hearing Officer/Attorney/Mediator with 31 years exp. Looking for support role as writer, editor, researcher and/or mediator in small collegial env - firm or not for profit. Contact put P/T Position Listing in the subject line.

7 Bench & Bar In The News News to share? Please us at com. Please note, The Bench & Bar In The News section is for ACBA members and member firms to share information regarding recent achievements and activities. Publication in The Bench & Bar is limited to ACBA members. To be eligible for consideration, all submissions, including press releases, must be edited to words. Young Lawyers Committee 7 The Honorable Leslie E. Stein was confirmed to serve on the New York Court of Appeals on February 9, Judge Stein was nominated by Governor Andrew Cuomo on October 20, Judge Stein has served as a justice or judge on New York s courts for the last 17 years. Prior to the confirmation, Judge Stein, an Albany County Bar Association Sustaining Member, most recently served as an Associate Justice of the Appellate Division (Third Department) of the New York State Supreme Court, a position she held since Judge Stein was a judge on the trial bench of the New York State Supreme Court, during which she served as Presiding Judge of the Rensselaer County Integrated Domestic Part. She became Albany City Court Judge in 1997 and served as Acting Albany County Family Court Judge in Before becoming a judge, she worked in private practice from 1983 to 1996, specializing in matrimonial and family law. Judge Stein received her B.A. from Macalester College and her J.D. from Albany Law School. Matthew M. Zapala has been hired as an associate by the business law firm of Ganz Wolkenbreit & Siegfeld LLP. Mr. Zapala will be supporting the Firm s litigation, creditors rights, landlord-tenant and collection law practices. Mr. Zapala is a graduate of SUNY Albany and Albany Law School, where he served as Associate Editor of The Albany Law Review and was awarded the Wann Family Prize for Excellence in Business Law. Mr. Zapala is a member of the Albany County, New York State and Capital Region Bankruptcy Bar Associations. He is admitted to practice before all New York State Courts and in Federal District Court of the Northern District of New York. The Capital District Black and Hispanic Bar Association (CDBHBA) announce the election of its new officers and board members for the term. The following individuals were elected at the association s general body meeting on December 17, 2014 in Albany, New York: President: Patricia L. R. Rodriguez, Esq. First Vice President: Ricja Rice, Esq. Second Vice President: Frank Munoz, Esq. Treasurer: Jorge Rodriguez, Esq. Secretary: Clotelle Drakeford, Esq. Board Members: Gaspar Castillo, Esq., Hon Helena Heath, Gloria Herron Arthur, Esq., Donna Mackey, Esq. Jennifer Richardson, Esq., Rachel Ryan, Esq. and Margie Soehl, Esq. Patricia Rodriguez is the first Hispanic to lead the organization. The Capital District Black and Hispanic Bar Association is a voluntary bar association of minority attorneys in the Capital District. For more than two decades, CDBHBA s efforts have centered on increasing the number of attorneys of color, promoting their presence in the profession of law, fostering professional and social interaction among its members, and lending a public voice on issues impacting attorneys of color in the Capital District. Amanda K. Kuryluk, Esq. Co-Chair Maguire Cardona, P.C. James R. Barnes, Esq. Co-Chair Burke, Casserly On January 22, 2015, our newest members of the bar were sworn in by the Third Department Appellate Division at a special ceremony held at the Convention Center in Albany. On March 12, 2015 we will welcome in another group of new attorneys who will also be admitted to practice. The Young Lawyer s Committee would like to congratulate all of the new attorneys on this huge accomplishment! In honor of our newest admits we are hosting a happy hour and reception in conjunction with the Small/Solo Committee and the Albany Law School Alumni at 6:00 on Thursday, March 26, 2015 at the Hilton Albany. We invite all members of the ACBA and Albany Law School Alumni to come out and celebrate with us. This event is a great way to network and meet fellow members of the ACBA. While there is no cost to attend this event, if you are a newly admitted attorney and would like to attend, we ask that you please contact Stacey Whiteley at so that we can properly welcome you and get you signed up if you are not already a member of the ACBA. We hope to see many of you at this special event! The YLC is also in the process of planning future events, including a CLE and volunteer outing. Watch for announcements with more information. In the meantime, we welcome your ideas, suggestions, and comments. Please feel free to contact either Amanda Kuryluk or James Barnes. The views expressed in the letters and columns reflect the opinions of the authors and may not reflect the views of the Association, its Officers, Directors or Members. Opposing viewpoints are always welcome and can be ed to:

8 8 Health David Nardolillo, Esq. O Connell & Aronowitz, P.C. Seventh Circuit Decision Highlights Scope of Anti-Kickback Statute Most healthcare providers understand that the federal Anti-Kickback Statute ( AKS ), prohibits the acceptance of payments (or other remuneration ) in return for referring a patient to another provider. 1 A simple example of a prohibited arrangement would be a physician who received a cash payment from a home health agency ( HHA ) in exchange for every Medicare patient he directed to that agency for home care services. However, would a physician violate the AKS if he received payment, but the HHA had been independently selected by the patient and without any involvement by the physician? The United States Court of Appeals for the Seventh Circuit just answered that question in the affirmative. Its decision reaffirms the AKS s policy goals and is a reminder for physicians to remain diligent in analyzing all compensation arrangements. That case, United States v. Patel, 2 began when Grand Home Health Care ( Grand ), a HHA, 3 began offering doctors incentive payments in return for referring patients to Grand. One such physician was Kamal Patel, a Chicago internist who regularly prescribed home care services for Medicare beneficiaries. For a Medicare beneficiary to be eligible for home health services, a physician must sign an order certifying that the patient needs eligible services and is confined to home. 4 This order must also be periodically recertified if the patient continues to require home care. 5 Those certifications and recertifications permit the HHA selected by the patient to bill Medicare for the appropriate services. In Patel s practice, after he determined that a patient required home health care services, 6 Patel s assistant would give the patient an array of brochures from various HHAs, including Grand, and the patient would independently select the HHA. Patel was not involved in the selection process and did not instruct the assistant to recommend a particular agency. There was no contention that Grand s brochure was included in these arrays in the because of Grand s offer of referral payments. 7 After the patient chose, the assistant would fax Patel s prescription for home care services to the selected HHA, which would perform intake and care planning, and then return a Medicare certification form, known as Form 485, to the physician for signature so that the services could commence and be billed. Patel always honored the patient s choice, even if Grand was not selected. If the patient did select Grand, its nurses would begin providing services, but the necessary Medicare Form 485 for each patient would not be completed until Patel and one of Grand s owners, Nixon Encinares, met to complete those forms. At these meetings, Patel would sign the forms and Encinares would pay him $400 in cash for each certification, and $300 for each recertification. An FBI investigation of Grand led to the indictment of Patel. At trial, Patel conceded that he received payments from Grand but Patel disputed that he entered into an agreement with Grand, or that he received the payments in return for his signature on the Form 485s. The government presented recordings of conversations between Patel and Encinares which suggested that Patel would only sign the Form 485s when Encinares was ready with cash. 8 Patel also argued that he did not make a referral prohibited by the AKS because he played no role in a patient s selection of the HHA. The district court rejected this argument and found that Patel had violated the AKS by signing the Form 485 in return for payments from Grand. Patel was sentenced to eight months in prison and 200 hours of community service, and was required to return the kickback payments. 9 On appeal, the main focus of the Seventh Circuit was whether Patel s signing of the Form 485 constituted a punishable referral under the AKS The AKS provides that whoever knowingly and willfully solicits or receives any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program [shall be guilty of a felony]. 10 The term referring is not defined in the statute, and its precise meaning within the AKS had not been previously litigated. Patel argued that referring required that a person engage in directing or redirecting (as a medical case or a patient) to an appropriate specialist or agency for definitive treatment, a common definition found in various dictionaries. 11 In other words, Patel urged that referring required an actual recommendation of a particular provider to a patient. However, the Court found other sources which suggested that referral was a more expansive term which denoted the simple authorization by a physician that is required before a patient can seek specialist services. 12 The Court noted that [e]xercising this gatekeeping role is one way that doctors refer their patients to a specific provider. 13 The definition of a referral in the related federal Stark Law 14 also supported this broad application. 15 As such, the Court concluded that Patel s action of merely signing the Form 485 constituted a referral under the AKS. The Court s decision also illustrated the policy aims of the AKS. Even though the Medicare program did not lose money on these transactions Patel had properly prescribed home care the Court found a clear danger of fraud. Even if a patient wanted a particular HHA, the existence of referral payments would give the physician an incentive to certify the patient even if he thinks that the care is unnecessary or believes that the patient-chosen provider is substandard. 16 The Court also found that same incentive would also taint recertifications in the same way, as highlighted by a recent Eleventh Circuit decision in United States v. Vernon, 17 which found that a referral violated the AKS when the referred individual was already a patient of the referred provider. The Seventh Circuit noted that if Patel s argument that a referral required an active recommendation was correct, then a physician would be free to accept a kickback during recertification a possibility foreclosed by the Vernon case. Finally, the Court noted the protection of patient choice, another important aim of the AKS, could be jeopardized by limiting the pool of providers a patient could chose, or by delaying the provision of care if the kickback was not paid. The Patel decision is ultimately unsurprising, given some of the evidence uncovered during the investigation. But the case underscores the need for health care providers and their attorneys to scrutinize any compensation arrangement that may be reduced to referral-based compensation however indirectly for

9 compliance with the AKS. Although there are various safe harbors and exceptions to the AKS, and the statute s prohibitions can be triggered even if a physician does not actively divert or direct patients to a particular provider. (Endnotes) 1 42 U.S.C. 1320a 7b(b)(1)(A). It should also be noted that certain states also have their own anti-kickback laws (see, e.g. N.Y. Soc. Servs. Law 366-d). 2 No , --- F.3d ----, 2015 WL (7th Cir. Feb. 10, 2015) 3 As we have covered in previous articles, home health agencies supply providers and aides who deliver skilled care and/or personal care services (meal preparation, bathing, grooming) to beneficiaries in their own homes, rather than institutional settings U.S.C. 1395f(a)(2)(C) C.F.R (b) 6 It was undisputed that all of Patel s patients needed home care. Patel, 2015 WL , at *2. 7 Id. 8 Id. at *3, It should also be noted that Patel may be exposed to potential charges against his license to practice, and could face exclusion from the Medicare program U.S.C. 1320a 7b(b)(1)(A) WL at *5. 12 Id. 13 Id U.S.C. 1395nn. The Stark Law prohibits referrals of certain designated heath services for Medicare and Medicaid beneficiaries to entities in which the physician or a member of his family has a financial interest WL at *6. 16 Id. at F.3d 1234 (11th Cir.2013) Practicing Law and Wellness Ann Lapinski, Esq. NYS Dept. of Environmental Conservation 9 Oatmeal Regaining its Proper Place in the World Growing up, in the years of at-home moms who cooked a morning breakfast, oatmeal was commonly on our breakfast table. There was nothing better on a winter morning than a steaming hot bowl of oatmeal. During my children s school years, cold cereal was the norm. Dump it in a bowl, eat and go. Oatmeal is back on the breakfast menu for two reasons. First, it has a good supply of unprocessed fiber, the kind that helps lower cholesterol levels. Second, it is a solid breakfast that staves off hunger well into the morning. Oatmeal comes in many forms: instant, quick, regular rolled, steel cut oats and oat groats. All oats start as an oat kernel, which in its whole form is an oat groat. Steel cuts oats, which are also known as Irish oats, have become more popular. Steel cut oats are made by splitting the oat groat into small chunky pieces. They take the longest to cook and have a nutty taste and chewy texture. (Producers have recently been marking quick steel cut oats which are cut into smaller pieces). Rolled oats are made by steaming the groats to make them soft and pressing them between rollers. Quick oats are rolled thinner and instant, the thinnest. The nutrients are similar for all forms of oats. The major difference is where the oats are located on glycemic index. The lower a food is on the glycemic index, the less it impacts your blood sugar. We feel best and do our best work when our blood sugar is more stable, not shooting up and dropping down. So if you want to write a brief or read a case file, skip the bagel for breakfast and eat something whole grain. Refined grains (think white rice) is high on the glycemic index, oatmeal in general is more moderate. Generally, the larger the grain, the lower it is on the index. Oat groats are lowest, instant oats the highest. I recommend a breakfast of regular oatmeal or steel cut oats. Here is the magic. You can eat your oatmeal and get to work on time too by using a thermos. I combine the amount of oats and milk (or water) that I want and place it in the fridge in a microwavable bowl. In the morning, I heat the oatmeal in the microwave just until it starts boiling. I pour that into a wide mouth thermos, add a few raisins and by the time I get to work, it is cooked and ready to eat. You can also do this with quick steel cut oats. I found the thermos I wanted by shopping online. CLE sessions include: Junk Control, How to be Article 78-Proof, Ethics, County Referrals, Case Law Updates, Conflict Management, OML & FOIL, Enforcement, and Land Use Moratoria. Registration Forms, Exhibitor registrations and more contact: NYPF, 600 Broadway, Albany, NY Instead of brown sugar or honey, try any of the following mix-ins: Sliced banana, toasted coconut, cinnamon, ginger, raisins (I like the big ones you can get at some of the natural foods stores), chopped figs, toasted walnuts, almonds or pecans or seeds of any kind (sunflower, pumpkin, sesame) and for the ultimate indulgence, a spoonful of chocolate-hazelnut spread. Even if you don t make oatmeal a daily practice, try adding it a few days a week. Your mind and body will thank you.

10 10 Immigration Law David W. Meyers, Esq. Meyers and Meyers, LLP Some time has now passed since President Obama announced on November 20, 2014 his intention to go it alone to fix of our broken immigration system. Since that announcement, lawyers such as myself were hopeful that we could start working with clients on their applications for expanded relief under Deferred Action for Childhood Arrivals ( DACA ), and later this Spring under the President s new deferred action program for the parents of U.S. citizens and lawful permanent residents ( LPR s), commonly known as DAPA. That all came to a screeching halt on February 16, 2015, when Texas federal district Judge Andrew S. Hanen granted a temporary injunction against the implementation of President Obama s executive action regarding the DAPA program and the expansion of the June 2012 DACA initiative. The injunction temporarily blocks President Obama s executive action aimed at providing administrative relief from removal to millions of immigrants. President Obama has vowed to appeal. This, of course, begs the question of whether the President s actions were lawful. I think they were. A (Very) Brief History of Previous Exercises of Discretionary Relief President Obama s administrative action was but the latest among many of his predecessors in the Oval Office who relied on their executive authority to deal with important immigration issues during their administrations. According to the American Immigration Council, since 1956, there have been at least thirty nine (39) instances where a president has exercised his executive authority to protect thousand, and sometimes millions, of immigrants, in the United States at the time without status, usually in the humanitarian interest of simply keeping families together. 1 So why all the fuss now? Prosecutorial Discretion, the Immigration Law and Regulations, and the Supreme Court DACA was established by executive action in June 2012, and was expanded by the President s announcement in November DAPA was first announced by the President in November Prosecutorial discretion generally refers to the authority of the Department of Homeland Security ( DHS ) to decide how the immigration laws should be applied, and it is a legal practice that has existed in law enforcement for quite some time. For example, the Immigration and Nationality Act ( INA ) and its implementing regulations are replete with examples where DHS will either refrain from an enforcement action, like electing not to serve and thereafter file a charging document (commonly known as a Notice to Appear) with the Immigration Court, as well as decisions to provide a discretionary remedies when an immigrant is already in removal proceedings, such as granting stays of removal (8 C.F.R ), granting parole (INA 212(d)(5)), or granting deferred action (8 C.F.R. 274a.12(c)(14)). The INA itself authorizes the President s legal authority to exercise prosecutorial discretion, including by prohibiting judicial review of three (3) types of actions involving the exercise of prosecutorial discretion (i.e., the decisions to commence removal proceedings, to adjudicate cases, and to execute removal orders). See INA 242(g). Congress has also legislated deferred action in the INA itself as a means by which the executive branch may use, in the exercise of its prosecutorial discretion, to protect certain victims of crime, abuse, or human trafficking. See INA 237(d)(2), 204(a)(1)(D) (i)(ii,iv). Notably, the INA also has a specific provision which recognizes the President s authority to authorize employment for non-citizens who do not otherwise receive it automatically by virtue of their particular immigration status. See INA 274A(h)(3). It is this provision, in conjunction with other regulations, that currently confers eligibility for work authorization under DACA (and would do so again under expanded DACA and DAPA). The term deferred action is defined in one regulation (related to classes of aliens authorized to accept employment) as an act of administrative convenience to the government which gives some cases lower priority and goes on to authorize work permits for those who receive deferred action (provided they establish economic necessity). See 8 C.F.R. 274a.12(c)(14). Beyond this, memoranda issued by federal agencies authorized to implement and enforce our immigration laws have recognized prosecutorial discretion too, including a seminal one issued by legacy-immigration and Naturalization Service ( INS ) Commissioner Doris Meissner in 1990 to her senior agency staff. 2 There are earlier memoranda as well opining as to the legality of prosecutorial discretion too. 3 Finally, the Supreme Court held in Arizona v. United States that a [a] principal feature of the [deportation] system is the broad discretion exercised by immigration officials.... Federal officials, as an initial matter, must decide whether it makes sense to pursue [deportation] at all.... Arizona v. United States, 132 S. Ct. 2492, 2499 (2012). As a result of all of the above (i.e., the INA and its implementing regulations, Supreme Court decisions, and agency memoranda), there have been at least thirty nine (39) instances since 1956 where a president has exercised his executive authority to protect aliens, generally in the interest of simply keeping families together. So What Happens Now? Our history is replete with examples of U.S. presidents, in the name of prosecutorial discretion, issuing directives that provided for deferred action (or whatever they may have called it at the time) to non-citizens of the United States, and indeed Judge Hanen, in his written decision, affirmed the executive branch s right to exercise prosecutorial discretion. Previous lawsuits against similar executive actions have failed in the past. Indeed a similarly politically motivated lawsuit was thrown out in December 2014 when Maricopa County Sheriff Joe Arpaio argued that President Obama s announcements were unconstitutional. In 2012, the State of Mississippi challenged the legality of DACA in a case similar to the current Texas lawsuit, and that case was dismissed because the judge found the perceived economic hardship the state claimed was purely speculative. As I have previously argued and substantiated in this column, studies have shown that deferred action initiatives, apart from being the right thing to do, are economically beneficial to our

11 country. In his decision, Judge Hanen cites the government s failure to secure the borders and then goes on to support the plaintiffs position of supposed costs to the states without any evidence whatsoever in the record. The American Immigration Lawyers Association ( AILA ) and others have argued that Judge Hanen disregarded information submitted by the government and AILA as to the widespread economic and social benefits that the expanded DACA and DAPA programs would provide. They re right. Again, the Obama Administration has indicated it will appeal, and at the same time seek a stay to the enforcement of Judge Hanen s order. I am cautiously optimistic that the government will prevail. In the meantime, it s noteworthy to point out that those who have previously been granted DACA are not at all affected by Judge Hanen s ruling. This ruling only delays the start of DAPA and the expansion of DACA. Footnotes: 1 See 2 See Doris Meissner, INS Commissioner, Exercising Prosecutorial Discretion 1 (Nov. 17, 2000), memo.pdf. 3 See e.g., Sam Bernsen, INS General Counsel, Legal Opinion Regarding Service Exercise of Prosecutorial Discretion (July 15, 1976), prosecutorial-discretion/service-exercise-pd.pdf. Tax Traps Richard V. D Alessandro, Esq. Professional Corporation 11 In life, there are no guarantees Luke incorporated his company several years ago, electing to be taxed as an S corporation under federal and NYS tax laws. By electing S corporate status, all of his company s income, deductions and losses pass through to him individually, thus avoiding a double tax. Luke s construction company is about to undertake a major project. The company s controller anticipates it will incur a $700,000 tax loss (and a deduction for Luke) over the next two years before the project becomes profitable. But there s a hitch, Luke s loss deduction for any taxable year cannot exceed the sum of: (1) his stock basis - the amount of Luke s investment in the stock of his company, plus (2) his indebtedness basis - the amount of any indebtedness of the company to Luke. IRC 1366(d)(1). 1 The sum of Luke s stock basis and indebtedness basis is only $1,500. The company needs $750,000 financing for the project and Luke asks you to represent him. But, the bank won t make the loan unless Luke guarantees it. Will Luke s guarantee give him an additional $750,000 indebtedness basis in his company? No - under recent Treasury Regulations: A shareholder does not obtain basis of indebtedness in the S corporation merely by guaranteeing a loan or acting as a surety, accommodation party, or in any similar capacity relating to a loan. Treas. Reg (a)(2)(ii). A guarantee is not a direct obligation, it s only a contingent obligation. 2 Is there another way? Yes - it s called a back-to-back loan. Instead of a direct loan from the bank to the company, the transaction should be structured such that the bank makes the loan to Luke, who in turn loans those proceeds to his company. In this way, the company creates a direct indebtedness to Luke, thereby giving Luke the needed indebtedness basis for the anticipated loss, while at the same time maintaining the economic intent of the overall transaction among the parties. Recent Treas. Reg (a)(2)(i) permits this transaction, provided the loan is a... bona fide indebtedness of the S corporation that runs directly to the shareholder The regulation warns, however: Whether indebtedness is bona fide indebtedness to a shareholder is determined under general Federal tax principles and depends upon all of the facts and circumstances. 3 1 However, any disallowed loss or deduction retains its character and is treated as incurred by the corporation in the corporation s first succeeding taxable year, and subsequent years, with respect to the shareholder. Treas. Reg (a)(3). 2 When a shareholder makes a payment on a bona fide indebtedness of the S c o r p o r a - tion for which the shareholder has acted as guarantor or similar capacity, then the shareholder may increase the shareholder s basis of indebtedness to the extent of that payment. Treas. Reg (a)(ii). 3 The regulations do not identify the factors of a bona fide loan. For a discussion of these factors, see Mixon v. U.S., 464 F.2d 394 (5th Cir. 1972).

12 12 Court of February R: President Janet M. Silver addresses the audience Judges of the Court of Appeals with the ACBA Board Below : Hon. Karen K. Peters is presented with the President s Award by the Hon. Peter G. Crummey Below: Immediate Past President Hon. Peter G. Crummey passes the ceremonial gavel to President Silver. Harry Skip Meislahn as Master of Ceremonies R: The Honorable Jenny Rivera delivers the keynote address. L: The Honorable Victoria A. Graffeo presents Chief Judge Lippman a resolution recognizing Judge Lippman s service on behalf of the ACBA. All photos by Colleen Piccolino. More Than Memories Photography

13 13 Appeals Dinner 11, 2015

14 14 Attorney Marketing and Business A Road Less Traveled for Building the Injury Practice of Your Dreams This was not your usual workday lunch. John H. Fisher Esq. John H. Fisher, P.C. One of the most successful personal injury lawyers in New York agrees to have lunch with me. We re complete strangers and I m totally up-front with him from the get-go: I tell him that I m here to find out what has made him a success. I m going to pick his mind and hopefully leave with a couple of gold nuggets that I can use for my practice. I call this Modeling the Masters and it s surprising to some that top-caliber lawyers are willing to share their best tips and advice. As I walk into this lawyer s office, a few things stand out right away: his desk is spotless. There are no papers strewn across his desk in fact, there s nothing on it. The lawyer s office is organized and clean and it s my guess it always looks that way. Before the usual exchange of pleasantries, one thing is clear: this lawyer s workday is structured down to the minute with an agenda that he sets in advance (I know this because it took months to get a lunch date with him). As we get to know each other over lunch, I ask very bluntly for the two or three things that made him successful. Rather than worn-out clichés of work hard or never give up, the lawyer gives it to me straight. The lawyer holds nothing back by telling me that he tried just about every marketing tactic and for the most part, they didn t work. An Epiphany that Launched a Highly Successful Law Firm When the lawyer was struggling to launch his practice, he settled a big case and used the funds to focus on one marketing tactic, radio ads. The lawyer didn t just dabble with radio ads, he went all in by spending $100k (even when money was tight). The radio ads weren t loud or obnoxious, but conveyed a clear message: We care about you. Each radio ad had a different story and one ad was more successful than the next. New personal injury leads came in and the lawyer began experimenting with new ads and investing more money in radio. Over a two hour lunch, the lawyer confided in me: for every dollar he spends on radio ads, he makes $10 in return. Wow! Where else can you find an investment where you can invest $1 and get $10 in return? Nowhere! But this never would have happened if the lawyer didn t experiment with different types of marketing and eventually find one tactic that worked in spades. The Real Key to Success for a Great Law Firm You re thinking just what I was thinking: building a great injury law firm can t really be that simple. And you re right, it s not that simple. The lawyer confides in me that many have tried to copy his marketing tactics with little success. Lawyers enter the world of radio advertising and are chewed up and spit out in short or- der they spend big bucks for 3-4 months, get no return on investment and move on to something else. That s when the lawyer starts chuckling and shares with me the gold nugget that I came for: he knew these other lawyers would fail. You can t spend 3-4 months on a marketing medium, like radio ads, and expect to see instant results. The lawyer shares with me, You have to drive it into the ground. As it turns out, the lawyer took a year or two to see any results from his radio ads. But the results were nothing short of amazing and the lawyer kept pouring more gas on the fire. The lawyer s total commitment to a single marketing tactic launched one of the most successful personal injury practices in the State. Why Copycat Marketing Sucks! The gold nugget from one of the most successful lawyers in our State was two-fold: #1: Experiment with a lot of marketing tactics and find out what works best for you; and #2: Once you find something that works, drive the sucker into the ground. But it s a mistake to think that just because a marketing tactic worked for one lawyer that it will work for you. We have different practices, and our ideal clients and prospects may be completely different you may want the slip and fall or motor vehicle clients, while others (like me) try to get cases involving severe injuries caused by medical malpractice. Marketing that works for the lawyer down the street may be a total waste of money for you. That s why copy-cat marketing sucks! An Epiphany of Yours Truly In June of 2010, I sat in a large conference hall at the annual seminar of Great Legal Marketing. The speakers gave great tips for internet marketing and mass marketing tactics and while I loved the content, I realized that the ideal client of the mass marketers was very different from mine. My best cases didn t come from injury victims they came from lawyer referrals. But not just any lawyer my ideal client is a personal injury lawyer who doesn t do medical malpractice. An Ideal Client who won t just refer a single case, but will refer a steady stream of new cases for the rest of my career. So I decided to stop spending money on mass marketing (yes, that means no yellow pages ad) and I began focusing every dollar and marketing to personal injury lawyers in New York. Driving the Sucker into the Ground! In January, 2010, I began writing a monthly newsletter for lawyers, Lawyer Alert. At first, I was skeptical about the value of a lawyer newsletter, so I limited my expenses and time by doing a quarterly newsletter. Turns out a quarterly newsletter accomplished nothing and after a year, I was ready to give up. But rather than giving up, I cranked it up to a monthly newsletter and after about 12 months, I finally started seeing the results. Lawyer Alert is mailed to 714 lawyers on the 28 th day of every month and it helps keep me top of mind with my top referral partners, so when the big malpractice comes in, they will know who to call (yes, I have ulterior motives). For every newsletter, I receive two to three new referrals from lawyers and the return on investment for my newsletter has been far better than any other marketing tactic.

15 15 It s been three years since I started a monthly Lawyer Alert and there is no doubt it is the best thing I ve ever done in my career. Had I given up with the quarterly newsletter, Lawyer Alert would not exist. Driving the sucker into the ground is why Lawyer Alert exists! Where You Should Begin: Your Ideal Client It all starts with a picture of your Ideal Client. Who is the person or lawyer who sends your best cases to you? You need to be crystal clear about who that person(s) is and write down their names and draw a picture of them. Be very precise by listing your Ideal Clients age range, geographic region and in some cases, their practice areas and size of their law firm. The list of your Ideal Client might just be 5 or 10 people, but if they refer you a steady stream of new cases, that s all you need. Once you ve got a clear picture of your Ideal Client, it s time to market like crazy to them. Providing content-rich, valuable information to your Ideal Clients is the best way to market to your Ideal Clients. Give your Ideal Clients something they can use to grow their business--this might consist of seminars, newsletters, parties or podcasts. But the key is to experiment with different marketing tactics, find what works best in bringing new cases to you, and discard the rest. Paying It Forward is What Successful Lawyers Do We re all tempted to hold back our top secrets and that makes sense, you ve worked hard to find marketing and business tactics that work for you. You d be crazy to just give your secrets away, right? Well, maybe, but that s exactly what the most successful lawyers do and come to think of it, that might explain why they re successful. The American Italian Heritage Association and Museum invites you to join us in recognizing the Honorable Victoria A. Graffeo Senior Associate Judge of the Court of Appeals, Retired at its Fifth Annual Wall of Fame Gala Friday, March 27, 2015 at 6:30 p.m. Glen Sanders Mansion 1 Glen Avenue, Scotia, NY Tickets: $75 per person. Please mail check to: American Italian Heritage Association and Museum 1227 Central Avenue, Albany, NY Telephone: Or use Paypal: ACBA Golf League ACBA has set up a golf league. It will start sometime in April 2015 (date TBD) and will last 16 weeks. The league consists of 9-holes of golf. Scores will be handicapped, so all level of play is welcome. Cost is approximately $300 for the 16 weeks. You need not play every week, and substitutions are allowed. A firm can sponsor a slot and anyone from that firm can take that slot and play. The number of players is limited, so the first 16 who RSVP will be registered. RSVP/questions please Dan Coffey at CONTINUING LEGAL EDUCATION ETHICS & SOCIAL MEDIA: USE IN CIVIL CASES & YOUR MARKETING Thursday, March 12, :00 pm 2:00 pm (Lunch Served) ACBA or NYSBA Members: $40.00 Non-Members: $60.00 SPEAKERS: Hon. Randolph F. Treece, U.S. Magistrate Judge Nicole Black,, Pittsford, NY Peter Coons, D4 LLC, Rochester, NY Mark A. Berman, Ganfer & Shore, LLP, NYC Moderator: Scott L. Malouf, Law Office of Scott L. Malouf, Pittsford, NY Chair: James Potter, Hinman Straub PC, Albany Major Topics: Relevant recent ethics decisions and NY ethics resources addressing social media; Ethically using social media to find information; Implementing ethical practices with today s technology; Juror research, misconduct and social media; Ethically marketing your practice. REGISTER:

16 16 SELMA: BLOODY SUNDAY, MARCH 7, 1965 W. Dennis Duggan, AJSC & FCJ (Ret) The 15 th Amendment guarantying blacks the right to vote became law in Nearly one hundred years later, out of 6,500 eligible black voters in Tallahatchie County, Mississippi, only 5 were registered. 1 One hundred years is a long time to wait and the wait could be no longer. Martin Luther King knew he had to march and Selma was the place. On March 7, 1965, led by then SNCC national chairman and now Congressman John Lewis, 500 protestors started across the Edmund Pettus Bridge in Selma toward Montgomery to confront Governor George Wallace. It was just two years earlier that Wallace, standing on the spot where Jefferson Davis was sworn in as president of the Confederacy, famously declared: In the name of the greatest people that have ever trod this earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny, and I say segregation now, segregation tomorrow, segregation forever. Six months later, Wallace would stand in the door of Foster Auditorium at the University of Alabama to block the entry of the school s first black students. Wallace and the rest of the South were, of course, on the wrong side of history. And it was tragically ironic that one of the worst examples of racial violence in our nation s history would take place on a bridge named for a Confederate General and founder of the Alabama chapter of the Ku Klux Klan and would be inflicted by those who took an oath to protect and serve. The Selma-Montgomery march would lead to the passage to the Voting Rights Act but it would surely have been a longer time coming had not the brutality of the Alabama State Police been televised to 50 million Americans that day. 2, 3 Slavery is the great sin of the United States. It was founded on the force of arms, enforced by violence, justified by the Bible and sustained by the law. When God is on your side, little else is needed. It is a testament to the power of the Jim Crow legal regime that almost 100 years after the passage of the 15 th amendment, in one county in the South, only 5 of 6,500 eligible black persons qualified to vote. 4 You might ask how far you would have gone in life if your parents or grandparents could not vote until Not voting also meant not serving on a jury because the one was a prerequisite for the other. When Jim Crow lost its authority in the Constitution and Federal Law, and State law was exposed to easy challenge, it turned to local ordinances to continue the denial of voting rights. One way to do this was to control the protestors and voter registration efforts. Activities in these areas could easily be termed a breach of the peace. For example, in the Montgomery, Alabama Municipal Court, a judge found that several white students on a college field trip had disturbed the peace by eating at a black restaurant with their black hosts. The judge held that blacks and whites dining together was such a breach of Southern white custom that it was likely to alarm other white persons and therefore was conduct calculated to provoke a breach of the peace. 5 In Drew, Mississippi, an ordinance allowed the protective custody detention of civil rights workers to lessen the chance that their mere presence would provoke a breach of the peace. Anti-leafleting ordinances were common. These required a license, bond and security to cover the cost of clean-up. The State Highway Patrols, previously having authority to enforce only traffic laws, were given authority to enforce the criminal law---but only for offenses involving a breach of the peace. Gambling and liquor offenses were out of bounds. Those laws would be enforced by the Sheriff. Jail terms for ordinance violations were raised, typically from 30 to 90 days and fines were dramatically increased. After devices such as poll taxes and literacy tests were outlawed, the state legislatures voter suppression efforts became more subtle. Juvenile Courts were stripped of their breach of the peace jurisdiction because children participated in civil rights marches and the police needed the authority to arrest them. Anti-picketing laws were strengthened. Colleges that became home to the civil rights movement were targeted because they had become a haven for queers, quirks, political agitators and communists, as the Lt. Governor of Mississippi described it. After the law had gone far to destroy the black family, Mississippi made it a felony for a person to have a second illegitimate child. Expanding the number of blacks with criminal convictions is still a fertile and permissible method of voter suppression. Appealing to the Federal Judiciary did not a guarantee an even playing field for victims of voter discrimination for the obvious reason that almost all the judges in the 5 th Circuit came from the South and were imbued with the Southern way of life. 6 In a voting rights lawsuit filed in 1961 in the Southern District of Mississippi, Judge William Harold Cox ruled that [The] imbalance in registration is occasioned solely by reason of the fact that negroes have not been interested in registering to vote and very few have bothered to apply The registrar of voters of Clarke County Mississippi testified in that trial that white voters could register by proxy while negroes had to pass a citizenship test. The test asked a prospective black voter to interpret Section 112 of the State Constitution involving taxation. This section contained 140 words in one paragraph and covered the taxation of animals, railroads and the equalization of assessments. Even Judge Cox noted that the Supreme Court of Mississippi had difficulty interpreting that provision of law. Judge Cox was a Kennedy appointee. But at the time of Cox s nomination, Mississippi Senator James O. Eastland was the chair of the Senate Judiciary Committee and had 73 other Kennedy nominations before him. Cox was Eastland s roommate in law school at Ole Miss. 7 8 The Equal Justice Initiative in Montgomery, Alabama has documented the sites of almost 4,000 lynchings that took place in the South from 1877 to Their goal is to put a historical marker at each location. These lynchings were terrorist acts meant to keep blacks in their place, primarily out of the voting booth and the jury box. In 1922, in Kirvin, Texas, three black men were accused of killing a white woman. In front of hundreds of spectators, a mob of white men castrated, stabbed, beat, and tied the three to a plow and then set them on fire. If only ISIS was led by a Martin Luther King. (Endnotes) 1 Voter suppression occupies a prominent place in the protection of political power. In 1898, Louisiana adopted a new constitution with a grandfather provision. If you or one of your ancestors had voted prior to the Civil War then you were a qualified voter. As a result, black voter registration went from 130,000 to 1,300, a 99% drop. This constitutional convention was brought to order by former president of the American Bar Association, Judge Thomas J. Semmes who

17 17 remarked: We [meet] here today to establish the supremacy of the white race and the white race constitutes the Democratic party of this state. 2 For strategic reasons, Martin Luther King did not march on the first day. It was planned that he would join the marchers somewhere on the way to Montgomery to insure that he was available to meet Governor Wallace. When King watched the bloodshed on TV, he knew he had to lead a second march. A few days later, he brought a second group of protestors to the center of the bridge but then turned back without any warning to his supporters who were mystified. Many felt betrayed. King knew, however, that Federal District Judge Frank Johnson had signed a restraining order and if they marched they would become lawbreakers. The idea of marching to the center of the bridge and then turning back came from former Governor of Florida, Leroy Collins who was then the Director of the National Community Relations Service. After a hearing a few days later, Judge Johnson permitted the march. Wallace refused to provide State Police protection and President Johnson nationalized the Alabama National Guard. King then invited people from all over the country to join him and on March 21, 1965, over 25,000 people marched the 50 miles to Montgomery. On March 15, Johnson addressed a special session of Congress and delivered his And we shall overcome speech, witnessed by 70 million Americans. Three days later he sent a voting rights bill to congress. 3 Presenting another point of irony to the Edmund Pettus Bridge location; ABC News interrupted the premier showing of Judgment at Nuremberg to broadcast the violence in Selma 4 As with many of our symbols and cultural icons, Jim Crow started out as being one thing and ended up being the opposite thing. Originating in the deep South, especially the Sea Islands of Georgia, Jim Crow was the term that described the songs and plays that depicted the African-Americans who had run to freedom. Jim Crow entered the cultural mainstream in America by way of T.D. Rice and his black face minstrel characters. From , Rice was one of the most famous actors in America. Before the concept of Jim Crow stood for America s justly despised segregation laws, it first referred to a very crossracial energy and recalcitrant allegiance between blacks and lower class whites. That s what the trickster Jim Crow organized and represented, a working-class integration a jumping dizzy Jim Crow movement. And that s what those who proposed segregation laws were determined to outlaw. Professor W.T. Lhamon, Jr., Jump Jim Crow: Lost Plays and Street Prose of the First Atlantic Popular Culture. 5 In Garner v. Louisiana (368 U.S. 157 [1961]), the Supreme Court held that wholly lawful and non-provocative behavior could not constitute disturbing the peace, especially where the claim was that other people, merely offended by the conduct, might be aroused to violence. 6 The Johnson Justice Department was clearly supportive of the civil rights movement but the FBI under J. Edgar Hoover was hostile territory. Hoover viewed King as the most dangerous man in America and refused to allow his agents to pass along reports of death threats to the burrhead, as Hoover referred to King. 7 James O. Eastland was known as the voice of the white South. In a 1957 interview with Mike Wallace of CBS News he said that segregation was a matter of choice by both races. I ve just told you that a reconstruction legislature composed principally of nigras [sic[ enacted segregation statutes. 8 Johnson has entered the conventional historical narrative as the Master of the Senate, famed for his ability to get legislation such as Medicare, the Civil Rights Act of 1864 and the Voting Rights Act of 1965 through Congress. In fairness to our later presidents, Johnson was operating with FDR-New Deal sized democratic majorities and a Congress that was not gridlocked as ours is today. For example, in 1965, the Senate had a Democratic majority and the House favored the Dems When Johnson sent over his Voting Rights Act in 1965, it already had the support of Everett Dirksen, the Republican leader in the Senate.

18 18 Continuing Legal Education The Albany County Bar Association has been certified by the NYS Continuing Legal Education Board as an Accredited Provider of CLE in the NYS and has also been given approval to provide non-traditional CLE format courses. Hardship Scholarships are available. For a list of our CDs, or additions to our programs, please visit our website: ADDITIONAL CLE PROGRAMS ARE ADDED ON AN ONGOING BASIS CHECK OUR WEBSITE FOR THE MOST UP TO DATE SCHEDULE The Albany County Bar Association provides scholarships for those members in need: Fee waivers for unemployed attorneys and fee reductions on a sliding scale for attorneys with annual incomes of $30,000 or less. Unemployed: Full Scholarship Income up to $15,000: 75% Discount Income $15,000 - $30,000: 50% Discount Income above $30,000: No Discount All requests must be in writing and are kept confidential. ************************** Registration: Program registration is strongly suggested at least 24 hours in advance of the session in order to ensure there are enough materials, food and seats. Day of and at the door registration will be accepted, although pre-registered guests will be given priority in regard to seating, materials, and meal choices. Please make checks payable to the Albany County Bar Association and remit to 112 State Street, Suite 1120, Albany, NY We also accept credit cards. Please contact or for additional information. Credit: Presenters: Co-Sponsors: Cost: 4.0 CLE credit hours Skills 1.0 CLE credit hour Ethics Matthew Tierney, Principal Administrative Law Judge Christopher Tate, Principal Administrative Law Judge Paul Mason, Esq., Director of Adjudication and Determination Joseph Dougherty, Esq., Hinman Straub, P.C. ACBA, NYSBA, & Legal Aid Society of NENY $75.00 Members/Non-Members or FREE if attorney agrees to take TWO unemployment case referrals from either the LASNENY or the ACBA Challenging Tier III Disciplinary Hearings Through Article 78 Proceedings Transitional: Appropriate for both newly admitted and experienced attorneys. March 31 Credit: Presenter: Co-Sponsors: Cost: 3:00 to 6:00 PM NYSBA, Great Hall, One Elk Street 2.0 CLE credit hours Professional Practice Samantha Howell, Esq., Director of Prisoners Legal Services ACBA & Prisoners Legal Services Free Forensic Accounting Tips & Tales of Resolving Financial Disputes in Matrimonial Matters Transitional: Appropriate for both newly admitted and experienced attorneys. ETHICS & SOCIAL MEDIA: USE IN CIVIL CASES & YOUR MARKETING Transitional: Appropriate for both newly admitted and experienced attorneys. April 16 12:00 to 2:00 PM Upstairs Room 677 Prime Buffet Lunch March 12 Credit: Presenters: Moderator: Chair: 12:00 to 2:00 PM NYSBA, Great Hall, One Elk Street Buffet Lunch 1.5 CLE credit hours Ethics Hon. Randolph F. Treece, U.S. Magistrate Judge Nicole Black,, Pittsford, NY Peter Coons, D4 LLC, Rochester, NY Mark A. Berman, Ganfer & Shore, LLP, NYC Scott L. Malouf, Law Office of Scott L. Malouf, Pittsford, NY James Potter, Hinman Straub PC, Albany Credit: Presenters: Cost: 2.0 CLE credit hours Professional Practice Pamela D Wickes, CPA, CFE, CFF, ABV Teal, Becker & Chiaramonte, CPAs, PC Michelle Haskins, Esq., McNamee, Lochner, Titus & Williams $75.00 Members $90.00 Non Members $50.00 Non-Attorneys ALBANY FAMILY COURT HELP CENTER UPDATE CLE Non-Transitional: Appropriate for experienced attorneys. April 23 2:00 to 4:30 PM NYSBA, Great Hall, One Elk Street Co-Sponsors: Cost: ACBA & NYSBA s Commercial & Federal Litigation Section $40.00 ACBA or NYSBA Members $60.00 Non-Members $25.00 Non-Attorneys UNEMPLOYMENT INSURANCE BENEFITS CLE Transitional: Appropriate for both newly admitted and experienced attorneys. March 20 9:00 AM to 4:00 PM NYSBA, Great Hall, One Elk Street Buffet Lunch/Breaks Credit: Presenters: Cost: 2.5 CLE credit hours Professional Practice Hon. Margaret Walsh, Albany County Family Court Lianne Pinchuk, Esq., Albany County Bar Association Jessica Brand, Esq., Albany County Bar Association Free to those who sign up for shifts at the Albany County Family Court Help Center $75.00 for all others

19 Labor and Employment Practice Glen P. Doherty, Esq. McNamee, Lochner, Titus & Williams, P.C. The Appellate Division recently handed down Miranda v. ESA Hudson Valley, Inc. (518004), a decision that reviews the allocation of proof in disparate treatment cases under New York s Human Rights Law. In Miranda, plaintiff began working for defendant as an ambulette driver in February 2009 and, after renewing his certification, was employed by defendant as a paramedic. In addition to providing patient care, plaintiff had certain responsibilities relative to defendant s supply of controlled substances, which were stored in a locker or narcotics box at defendant s facility. The locker/ box in question contained two locked doors. For each shift, the emergency medical technician (hereinafter EMT) would be assigned a key to the outer door, and his or her paramedic partner would be assigned a key to the inner door -- the basic premise being that no one individual would have access to the narcotics secured therein. In addition to maintaining the security of the controlled substances on hand, plaintiff also was responsible for conducting an inventory thereof and logging the controlled substances kit in and out of the locker at the beginning and end of each shift. In October 2009, a fellow employee complained that plaintiff had touched him inappropriately. In response to the complaint, plaintiff was required to attend a sexual harassment seminar. No further disciplinary action was taken against plaintiff. Thereafter, in December 2009, a nurse at a local hospital filed a complaint regarding plaintiff s allegedly abrasive behavior and, in a separate incident, plaintiff was overheard discussing patient care issues in public in violation of defendant s policies and the Health Insurance Portability and Accountability Act. Although the disciplinary violations were noted in plaintiff s personnel file, no further action was taken. In January 2010, however, defendant became aware of certain discrepancies and/or inaccuracies in the entries made by plaintiff in defendant s controlled substances log and daily inventory sheets. After discovering the noted discrepancies, defendant s representatives reviewed the video surveillance of the area where the controlled substances locker was kept, at which time it was noted that the locker had not been properly secured. Citing what it believed to be a serious violation of company policy regarding the security of controlled substances, defendant terminated plaintiff s employment. Plaintiff thereafter commenced an action against defendant alleging that he had been fired due to his sexual orientation, in violation of New York s Human Rights Law. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint. Supreme Court granted defendant s motion. Plaintiff appealed. In affirming the Supreme Court, the Appellate Division reviewed the applicable allocation of proof. More specifically, to support a prima facie case of discrimination under the Human Rights Law, a plaintiff must establish: (1) that he [or she] is a member of the class protected by the statute; (2) that he [or she] was actively or constructive discharged; (3) that he [or she] was qualified to hold the position from which he [or she] was terminated; and (4) that 19 the discharge occurred under circumstances giving rise to an inference of discrimination. Assuming plaintiff is able to satisfy this low threshold, the burden then shifts to the employer to rebut the presumption of discrimination by articulating legitimate, independent, and nondiscriminatory reasons to support its employment decision. If, in turn, the employer proffers the required nondiscriminatory reasons, the plaintiff can only avoid summary judgment by proving that the employer s stated reasons were merely a pretext for discrimination, by demonstrating both that the stated reasons were false and that discrimination was the real reason. Here, according to the Court, there was no question that plaintiff is a member of a class protected by the statute, that he was terminated from his employment and that he was otherwise qualified -- during the relevant time period -- to hold the position of a paramedic. Although the Court was not entirely convinced that plaintiff was discharged under circumstances that give rise to the inference of unlawful discrimination, it assumed for purposes of the underlying summary judgment motion that plaintiff established a prima facie case of discrimination based upon his sexual orientation, thereby shifting the burden to defendant. In this regard, the Court found that the record reflected that defendant indeed established a legitimate and nondiscriminatory basis for firing plaintiff -- namely, plaintiff s violation of defendant s controlled substances policies and procedures. The EMT who was working with plaintiff on the day in question conceded that he left the outer door to the controlled substances locker unlocked and unattended -- with the key in the lock -- for approximately 45 minutes, and plaintiff acknowledged at his examination before trial that both doors of the controlled substances locker were to be locked at all times and, further, that leaving the outer door unlocked and unattended wasn t something you re supposed to do. As defendant demonstrated a nondiscriminatory reason for terminating plaintiff s employment, the Court s inquiry turned to whether plaintiff tendered sufficient admissible proof to show the existence of a material issue of fact as to the falsity of the employer s asserted reasons for the termination, and that the discrimination was more likely than not the real reason for such termination. As explained by the Court, at this point in the allocation, plaintiff s claim survives only if he can demonstrate that the stated basis for his termination was designed to mask... discrimination. To that end, plaintiff testified that, as early as July 2009, he notified his superiors that some of his coworkers were making inappropriate sexual comments in the workplace (not necessarily directed at him). In the course of making this disclosure, plaintiff advised certain of his superiors that he was gay. Plaintiff further acknowledged that defendant did not take any adverse action against him due to his sexual orientation prior to October Although plaintiff contends that, from that point on, he was on a hit list, the fact remains that plaintiff was the subject of complaints in October 2009 and December 2009 and, yet, remained employed because defendant concluded that such incidents did not warrant taking any further disciplinary action against plaintiff. According to the Court, the fact that defendant refrained from terminating plaintiff s employment based upon these earlier disciplinary infractions militates against a finding that discrimination was the real reason behind plaintiff s termination from his employment in January As defendant s director of human resources succinctly stated, If we wanted to terminate [plaintiff] due to his sexual orientation, clearly we [c]ould have done so when we received the employee complaint of [inappropriate touching] in October Accordingly, the Court was satisfied that defendant demonstrated its entitlement to summary judgment dismissing the complaint.

20 20

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