News & Articles
Prof. Michael J. Hutter
Albany Law School
Powers & Santola
(From the December 2013 Newsletter)
My favorite out-of-state Bar Association President started his recent President’s Message with the following words – “We stand today on the edge of a ew frontier…the frontier of unknown opportunities and perils….” These words were spoken, of course, by John F. Kennedy during the 1960 presidential election campaign, a time when our country was truly moving on a fast pace to societal changes. These words, as noted by my esteemed colleague, are equally applicable today to the practice of law, compelling us to adjust our ways of practice and hinking about the law.
One such “peril” is the imposition of rules upon attorneys by the Office of Court Administration and the Chief Judge without any prior consultations about them with the bar before their promulgation and consideration of their impact upon the bar. One such recent example is the recently promulgated rule raising from 20 hours to 50 hours the amount of pro bono that attorneys should aspire to perform each year and mandating the reporting of pro bono hours on their biennial
registrations. Notably, at a recent meeting of the New York State Bar Association’s House of Delegates, the state bar’s policy-setting body, the House took the unusual step of voting down a revision of the commentary to inform attorneys of their obligations under these pro bono changes made to Rule 6.1 of the Rules of Professional Conduct. This action was taken as a protest to the rule that was imposed with an “iron fist” and with harsh impact upon small firms and solo
practitioners. It is the type of action that must be taken lest the bar is overwhelmed by the bureaucratic machinations of OCA. Whether the message has been received is yet to be determined. In any event, it shows the need for a strong bar association to represent the interests of its membership. I believe I can honestly say the ACBA is prepared and poised to represent the interest of our membership. By adding on members we can become even stronger. Continue your membership and encourage others to join.
We now practice in an environment dominated by technology. It is the result of what is now generally referred to as the “Digital Revolution”. Thus, we communicate by e-mail, engage in electronic court filings, deal with social media, bill electronically and struggle with concepts such as metadata and cloud storage. A past Connecticut State Bar President remarked as follows about this state of affairs: “If you think nostalgically about the practice of law and how it used to be,
then you are on the train tracks and not on the train.” We must adopt now if we haven’t already is the message. Indeed, last year the American Bar Association amended the comment to Rule 1 of the Rules of Professional Conduct to state that a lawyer’s competency must include the understanding of the “risks and benefits of technology.” The ACBA will help as much as it can in this in this area and aid its members.
A third precipice situation is legal education. You have all heard about the decline in law school applications, resulting in smaller entering classes at a law schools throughout New York and the rest of the United States. This situation must be viewed together with the increasing demand for practice-ready law school graduates. As a result, under the leadership of NYSBA President David Shraver the state bar is exploring various issues, including law school curriculum, a greater
focus on clinical courses and the bar examination process. Law school as we know it is about to change. It is important for our membership to become knowledgeable about the issues and participate in this debate as its outcome will certainly impact the future in one or more ways.
Turning to another matter, the ACBA’s pro bono efforts are continuing to prosper and grow, serving as a model for other bar associations throughout the state. Under the capable hands of Eileen Guinan, our Pro Bono Coordinator, and our recently hired pro bono attorney, Lianne Pinchuk we are doing good deeds day in and day out. I would also acknowledge the individual attorneys, in all types of practice, who provide pro bono services as well. These good deeds typically go largely unnoticed but they are greatly appreciated by the community at large. They prove that voluntarily provided services do work and are effective. This is important with the Office of Court Administration seriously contemplating the imposition of mandatory pro bono services as a condition to their continued ability to practice law in New York. I truly understand the importance of providing legal services to those who are indigent, but certainly this is a societal
obligation and should not be foisted exclusively upon attorneys. Imposing mandatory pro bono upon attorneys certainly takes the aspirational aspect of pro bono and runs the risk of creating resentment by the bar. Whatever one’s personal feelings are on mandatory pro bono, we should not shrink from being a means of providing pro bono service through the ACBA.
Lastly, I would be remiss not to note that the ACBA and its members have for many years played an active and significant role in helping our community during the holiday season, especially with low income and underprivileged families. This tradition will continue. I know we all have busy lives and our own families to think about during the holiday season, but I hope we can all take a moment to think about those individuals and families who may not be as fortunate as we are and contribute what we can, whether in services, gifts or financial contributions.
I wish you and your family a wonderful holiday season.
(From the November 2013 Newsletter)
We are now well into Fall. As I am writing this Message for the November Newsletter, three special days of the Fall are right around the corner – Halloween,Election Day, and Veterans Day. While Halloween is for the kids and their Parents, Election Day and Veteran Day are meaningful days for all of us. The former gives all of us the opportunity available only in a democracy, namely, to be heard, to hold elected officials accountable for their decisions, and to have a say in important issues that affect our community. This year especially is significant to the bar as we have the an election for an open seat for Supreme Court Judge in the Third Judicial District and Family Court Judge in Albany Family Court and as well a major proposed constitutional amendment to allow Supreme Court judges and Court of Appeals judges to remain active until they reach the age of 80. Let’s exercise our right as, of course, “Every Vote Counts!”
While I urge you to exercise your right to vote on Election, I also ask you to pause Veterans Day to honor our veterans by remembering and thinking about why we have that special day. On Veterans Day there will be parades and ceremonies and speeches, and veterans of all our wars will be honored. During their service, they all lived the words of President John F. Kennedy: “Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden meet any hardship, support any friend, oppose any foe to assure the survival and success of liberty.” Let’s not forget that.
We can honor our veterans in ways other than attending parades. For many years I have a routine that I follow on Veterans Day, a routine forged from growing up in a military family – my father served in the Marine Corps for over 30 years engaged in combat in both World War II and the Korean War; my brother retired from the Navy after 20 years at the rank of Captain; my grandfather on my father’s side served as a private under “Black Jack” Pershing and his American Expeditionary Forces in World War II; and if Dad’s memory was accurate, my great-great-great grandfather on his side was a private in the Civil War in a New York based regiment - and the death of a close college friend and fraternity brother, a Marine fighter pilot, who was killed in action in Vietnam. Before I get to my office at the law school, I visit the Vietnam Memorial at the Empire State Plaza and rub my fingers over the name of Jerry A. Zimmer; and once at my office I write a message to him via the Vietnam Wall website, call and speak with his widow, and then read through my Dad’s flight logs which I still have, all the while remembering and thinking about their sacrifices. This is my way of honoring veterans. I don’t expect all of you to do what I do – I just ask that you pause and think about all of those who served our great country through military service.
In this connection, the next time you are in the Albany County Courthouse, stop in at the White Courtroom. There are two plaques in that courtroom, honoring the members of the bar who served their country in World War I and World War II. You will note some very familiar names. I will endeavor to update that tradition of honoring members of our bar who served in wartime by having plaques put up to honor those among who served in the Korean War, Vietnam War and the various conflicts in the Middle East. My knowledge is incomplete. While I know Ray Kelly, Terry Kindlon, Bud Malone, and Larry Weist served and experienced combat in Vietnam, I am sure there are many others who served in wars subsequent to World War II, deceased and living whom I am not mentioning. Lest we overlook anyone, we would appreciate your help in forwarding to us the names of those who served. It is through these plaques that the honoring of our veterans continues after the parades, ceremonies and speeches are over.
Also deserving of recognition is another group of association members – attorneys who answer the call to provide pro bono legal services to veterans. In this regard, Albany Law School sponsored in October a program as part of Veterans’ Service Day, a student led program that has provided assistance to more than 200 veterans over the past two years. Congressman Paul Tonko provided some inspiring remarks and set the tone for the program when he noted “the voluntary involvement of so many students and attorneys in our community is a testament to our good will for those veterans.” I am proud to say fourteen members of our association with their law firms participated. Space limitations prevents me from listing them all but they are listed on the law school’s website with a link to the Press Release for the event.
Lastly, moving to a different topic, there are and have been changes to the ACBA. First, in the event you may not be aware of it, our association’s office has moved from the Albany County Justice Center to the Albany County Office Building at 112 State Street, eleventh floor. Through the generous efforts and help of County Executive Daniel McCoy and County Attorney Tom Marcelle, we have space that serves our needs in supporting you. Ultimately, we would like to get back into the Albany Courthouse and Adminstrative JudgeThomas Mercure has given us his assurances that once space opens up there which is suitable to our needs, we will move. Second, our esteemed Executive Director Barbara Davis will be retiring next year. She has served the Association well for over 28 years, and I can truly say that we would not be the strong Association that we are without her help and devotion to us through the years. The Association’s Board has a search underway so that a smooth transition can occur.
Have a Happy Thanksgiving, the fourth special Fall day!!
(From the October 2013 Newsletter)
A true highlight of the ACBA President’s term is the opportunity to address the ACBA membership, bench and bar alike, through this column about issues that impact our profession. I have noted in prior messages several such issues and in this message I will return to them and mention follow-up action that has been initiated, as well as some additional matters.
In my August message I commented upon the promulgation of a new rule by the Office of Court Administration, effective May 1, 2013, requiring attorneys to report their voluntary pro bono services and financial contributions to organizations providing civil legal services on their biennial registration forms. This rule was promulgated without any comment period. Notably, its promulgation followed the enactment by OCA of mandatory pro bono requirements for law school graduates seeking to be admitted to the New York bar, which was also done without any comment period. The Nassau and Suffolk County Bar Associations lodged complaints with OCA about the process, and other bar associations, including the ACBA joined in. As cogently stated by Peter Mancuso, the President of the Nassau County Bar Association: “While pro forma compliance with the initiatives adopted without input from the attorney constituents in this State may be compelled, meaningful change cannot be. Failing to solicit the valuable opinions of the attorneys regulated by OCA will not foster the culture of service intended by these changes.” In short, the plea is that OCA should work with the organized bar on initiatives affecting the profession, with OCA considering the bar’s legitimate concerns. Perhaps OCA is paying attention as in mid-September OCA announced that, at least for now, information provided by attorneys about the number of pro bono hours and the amount of money they contribute will not be subject to public disclosure.
On another matter, my August message also raised the less-than-ideal situation involving the Third Department which has been hearing cases down four of its authorized twelve Justices, and that the ACBA Board of Directors would consider efforts to expedite the appointment process. As the Third Department situation languished, significant vacancies have been emerging in the Second and Fourth Departments, with the Fourth Department also now sitting in four judge panels. No bar association, state-wide or county, expressed concerns about this situation.
At its September meeting, the ACBA approved a resolution recommending that all of the county bar associations within the Third Department join in a letter urging Governor Cuomo to act with dispatch in making appointments to the Third Department. As of this writing, several bar associations have been contacted and have agreed to sign such letter. Significantly, word of this initiative has spread and the State Bar as well as bar associations throughout the State are now considering joining in this important initiative started by the ACBA.
As you have probably discerned from prior messages, a major goal of mine is to promote our bar and the terrific contributions of our membership to our community, and be proactive on attacks against our profession. I take pride in the numerous favorable responses I have received regarding this goal. Two responses from distinguished members of our bar who wish to remain anonymous must be mentioned as they concern messages that capsulize our profession.
The great trial lawyer Daniel Webster said: “Justice is the greatest concern of man on earth.” He used these words to segue into the role of the attorney, namely, the person who asserts and defends justice on behalf of all of us. In short, the attorney is indispensable in preserving, protecting and perpetuating the rights of the public.
Shakespeare’s famous line - “the first thing we do, let’s kill all the lawyers” - is an excellent bookend line to Daniel Webster’s above quoted line. It was stated by Dick the Butcher in Henry VI, Part II, Act IV, a follower of Jack Cade, an anarchist, who believed that if he disturbed law and order, he could become King. By this line, Shakespeare was paying homage to our profession who play the critical role of maintaining justice.
How true those words were when first spoken and written centuries ago. They, of course, continue to be true today. Let’s continue in the spirit of Webster and Shakespeare, invoking their words and adding to them, although not necessarily in iambic pentameter.
Lastly, caught up in the words of Webster and Shakespeare, I must mention a recent “Q & A” between John Caher, a reporter for the New York Law Journal and Judge Thomas Mercure, which was published in the August 9, 2013 issue of the Law Journal. It is available on LEXIS. Mike Friedman suggested to me that this “Q & A” should be mentioned in our Newsletter, a suggestion I readily accede to here since it fits in so well with my above noted goal. Mr. Caher asked Judge Mercure numerous questions focusing on his career and his nearly 25 years as a Justice on the Third Department. Among the questions asked was “What qualities are necessary for a good trial and appellate judge?” Judge Mercure responded: “All judges, of course, need to be knowledgeable in the law and able to articulate the law clearly. A trial judge has to interact more with the parties and their attorneys, make immediate rulings to protect the parties’ rights and take the first crack at the issues in a case, as raised by the parties. For an intermediate appellate judge, a critical skill is the ability to take in vast quantities of information on a single legal issue, and pinpoint areas of weakness or confusion in the law (or in the parties’ arguments on the law), and provide clarification or at least frame the issues in pure legal terms for resolution by the high court.. . . . . Finally, all judges must endeavor to remain faithful to established legal principles and processes, as embodied in our state and federal constitutions, statutes, common law and rules. In difficult cases, where the law does not necessarily favor the more appealing litigant or position, one may be tempted to skew the facts, ignore the law or create an unwarranted exception in order to bring about the desired result. In my view, this sort of ad hoc jurisprudence is antithetical to our orderly system of laws, undermining the stability and certainty embodied in the principle of stare decisis and distorting the distinction between the judicial and legislative branches of government.” Suffice it to say, we can all agree that Judge Mercure’s body of judicial opinions is testament to his allegiance to his aspirational goals and commitment to the pursuit of justice.
Enjoy the beginning of Fall!
(From the September 2013 Newsletter)
September is now upon us. Based upon years of starting a grade or school year in September, I always associate September as the start of a new year, and the time to start thinking about what is in store for the next twelve months. Let me then use this column to express some thoughts from my perspective as President of the ACBA as to some matters that may affect our practice and our profession.
A debate started in the summer among economists, law professors and attorneys around the country about the value of a law degree based solely upon the high cost of obtaining a law degree and a view of the job market - present and future – as perceived to be bad for hiring of recently admitted attorneys. Many pundits are openly skeptical about whether a law degree is worth the money and suggest not so subtly that college graduates avoid a career in law. While it is true that law school costs have sky-rocketed over the past decade and the job market is tight, to advocate the avoidance of law school is in my opinion nonsense. Law school deans are taking steps to control costs and placement prospects in both the public and private sectors are improving for law school graduates. Nowadays, investment in a law degree can, financially, be rewarding. But also, as my colleague Professor Ray Brescia pointed out in a thoughtful Albany Times Union Op-Ed piece, which is available for viewing at http://www.timesunion.com/opinion/article/for-the-loveofthelaw-4746051.php, a law degree provides not just the opportunity for earnings potential but also the opportunity “to help right injustice and give voice to those who have none in our legal and political systems,” which work is its own reward. For these reasons, entry into our profession should not be discouraged or otherwise be belittled, but encouraged. I encourage all of you to speak out in coming months at public or private gatherings of college students and graduates in support of the value of a law degree and defeat the naysayers to allow our profession to continue to grow.
We can also expect more movement spearheaded by Chief Justice Lippman for the imposition of mandatory pro bono. To be sure, the denial of access to our legal system because one cannot afford an attorney is a travesty and cannot be tolerated; and the number of indigent people in need of civil legal services continues to climb. To his credit, the Chief Judge in the 2013-2014 judiciary budget has budgeted $40 million for civil legal services, an increase of $15 million (60%) over current year funding. Yet additional financial support is still needed.
The ACBA has a proud history of providing civil legal services through its volunteer pro bono program. To further its efforts the Association has applied for and received grants which will allow it to hire this month an attorney on a part-time basis to further our program and work with Albany Law School to facilitate the requirement that an applicant to the New York bar has performed 50 hours of pro bono service. While the Association and the bar have done its fair share, if not more, in this area, let’s see if we can do more. Mindful of professional workload and professional competence, it may not be possible for many of you to contribute your time. Nonetheless, pro bono on a limited basis may be the respite from the demands of your practice. Please consider taking on a case pro bono. Otherwise, we may see sooner than later mandatory pro bono.
Lastly, I must mention the upcoming November 5th statewide ballot. There are six amendments to the state constitution on the ballot. One you are all aware of - the legislation of seven new casinos. There is also an important one for the bar, entitled “Increasing Age Until Which Certain State Judges Can Serve.” It will allow Supreme Court judges to serve five two-year terms past the retirement age of 70 instead of the current three and that Court of Appeals judges would be allowed to remain on the bench for up to 10 years past age 70. This proposed amendment will be listed last among the six proposed amendments. Needless to say, this proposed amendment is a significant one. The ACBA Board of Directors will be considering at its next meeting whether to take a public position on it. Your input on this issue will be important to us.
As you reflect on these comments, I will suggest a common thread that links them all. It comes from the president of the Iowa State Bar Association, many of whose members I had the opportunity to meet this summer on an academic visit to Des Moines, the capital of Iowa. Des Moines is a wonderful city and has much in common with Albany and the same can be said for its bar, friendly and outgoing. The president, Guy Cook, had this to say: “Lawyers are unique among all professionals. We not only serve an occupation but provide an essential framework to our society to ensure the rule of law exists to protect the rights of everyone. As we march forward as members of the Bar, let us not forget those who have soldiered on and cleared the path before us and those who will come after us.” Certainly, food for thought.
Enjoy the remaining weeks of summer!
(From the Summer 2013 Newsletter)
A college fraternity brother is the sports editor for the Providence Journal. In its Saturday edition he has a column "For What It's Worth," which consists of his random observations of the world around him. Reading the column is the best way to start a Saturday morning and is the first thing I click on to when I wake up. In the current lazy, hazy days of summer when, in the words of composer George Gershwin, "Livin' is Easy", I truly find inspiration from the column and I will seek to emulate his always entertaining and frequently amusing observations for my summer President's Message. So, here goes:
*The Third Department has concluded its September, 2012 - June, 2013 Term down four of its authorized twelve Justices. Using four judge panels, the Court has nevertheless kept current with its ever burgeoning case load. Most impressive, however, is that the Court has continued its practice of writing full opinions articulating the reasons for its holdings, unlike the
other Appellate Divisions which produce decisions that essentially just announce a result. While we may not always like the result we receive from the Third Department, we at least know why we lost. Nonetheless, the lack of Justices is a matter of concern to us and if the situation remains the same when the Court starts its September 2013 term, the Albany County Bar Association Board of Directors and Officers will consider efforts to expedite the appointment process.
*A recent AP release related that Major League Baseball Commissioner Bud Selig stated he has never sent an e-mail and never will. You really have to admire him but can we survive in our world by doing the same? Also, I would assume that Commissioner Selig does not "tweet".
*Recently, Governor Cuomo announced that New York's smoke-free areas will be expanded to state parks and historic sites. Interestingly, the New York Times in its July 19, 1913 edition reported that the New York City Park Department Commissioner asserted that there ought not to be smoking in park areas where people congregated because there are persons who are annoyed by smoking and separate areas for smokers should be set up. Progress - a hundred years later. A tip of the hat to "Coverage Pointers" for this fact.
*That same edition of the New York Times referenced complaints of favoritism to women who commenced divorce proceedings in New York. The claim of favoritism was based on then current English law that required where a husband was guilty of misconduct and desertion that the wife write a letter "conciliatory in nature" requesting that the husband return to her, and only upon the husband's refusal would the wife be entitled to a divorce. I will leave to Mike Friedman's wit a comment.
*Albany will be a different place next January with Mayor Jennings' announcement that he will not seek a sixth term. Hopefully, there will be a place for Albany County Bar Association member Phil Calderone, the present Deputy Mayor, who has served the City with great distinction in a behind-the-scenes manner, in the new administration. If not, Phil will be
*If you have been in Albany Law School's Library recently, you will have undoubtedly observed scores of freaked out law students studying for the July Bar exam. I am sure this brings back "fond" memories when you were such a law student. In the spirit of "misery enjoys comfort", head to the Board of Examiners' website and click on the link to past bar exams. See how much law you have retained in the areas you do not practice in.
*You may not be aware that a new rule took effect on May 1, an amendment to Part 118 of the Rules of the Chief Administrative Judge, which requires attorneys to report their voluntary pro bono service and financial contributions to organizations providing civil legal services on their biennial registration forms. The bar was not given the opportunity to comment on the rule before it went into effect. Why the bar was not so notified has not been explained. The State Bar Association in opposing this mandatory reporting and the method it was imposed on the bar, noted that the rule creates an invasion of a lawyer's individual privacy and could place attorneys in risk of potential disciplinary charges if they fail to report. I would add my fear that the rule could discourage the providing of pro bono services. The Albany County Bar Association's
Board of Directors and Officers are monitoring this development along with other bar associations and will consider joining in with the State Bar's opposition.
*Speaking of court rules, a prominent Orange County attorney mentioned to me that he had just received a three volume publication from West entitled “New York Court Rules”. He noted that now in his litigation practice he must be knowledgeable about and keep current with not only the CPLR but also the Uniform Rules for Supreme Court, Judicial District Rules and
individual judge's rules. He adds that he confronts the same situation in the federal courts. He bemoans the bewildering set of procedural rules he confronts every day, a situation made worse by the lack of uniformity among them. All of this compounded when the Appellate Divisions differ on the interpretation of a CPLR provision and the Court of Appeals refuses to step in to resolve the split. He asks rhetorically if "this is the way to run a railroad" and as well if it is a way to force attorneys to obtain malpractice insurance with high monetary coverage limits.
He's correct, isn't he?
ENJOY THE REST OF THE SUMMER!
(From the Jun 2013 Newsletter)
I have always loved this time of year. I enjoy wonderful memories of growing up in North Carolina getting my baseball bat and glove out of storage and playing ball with my father and then swimming in the Atlantic Ocean off Emerald Island with him. Every day brought me a new pleasure, and gave me the enthusiasm for even better things to come in the summer months. To this day, I get the same sense of enthusiasm but now it is from different sources, including taking my grandson to watch the Albany Dutchmen play in a collegiate baseball league and taking all my gra