By Eugene Glicksman, Esq.

“Yes, Minister” was a wonderful satire ofthe British government on BBC Televisionfrom 1980 to 1984, followed by “Yes,Prime Minister” from 1986 to 1988. In thisseries, Paul Eddington portrayed The RightHonorable James (“Jim”) Hacker, MP, anearnest and honest politician trying hisdamnedest to reform the government whilehis Permanent Secretary, Sir HumphreyAppleby (played by Nigel Hawthorne) inparticular, and the British Civil Service, ingeneral, try their utmost to thwart hisactions at each and every turn. Fans of thisseries well remember Sir Humphrey’scounsel that matters would be resolved “inthe fullness of time, Minister.” The mean-ing was clear: if you wait long enough anddo nothing, the problem will be forgottenand thus resolve itself.

As Oscar Wilde said, “Life imitates art,more than art imitates life.” It would seemthat the “fullness of time” positionappears to have been adopted by the eightSenators - Chuck Schumer (D-NY), DickDurbin (D-IL), Bob Menendez (D-NJ),

Michael Bennet (D-CO), John McCain(R-AZ), Marco Rubio (R-FL), LindseyGraham (R-SC), and Jeff Flake (R-AZ) -who presented a plan for comprehensiveimmigration reform on January 28.

Their plan, in broad strokes has fourgoals:

1. Create a pathway to U.S. citizenshipfor the approximately 11 millionundocumented immigrants currentlyin the U.S.;

2. Reform the legal immigration systemand attract the “best and brightest”;

3. Mandate employment verification;4. Admit new workers while protectingthe rights of American workers.

These are high-minded goals with won-derful-sounding aims. As is usual, howev-er, the devil is in the details: the first partof the proposal makes its passage highlyunlikely.

According to the Senators’ proposed plan,the implementation of the pathway to citi-zenship is “contingent upon our success in

securing our borders and addressing visaoverstays.” This begs the question as tohow much “success” will be consideredenough in order for the legalization pro-gram to begin. It would seem that theSenators believe that the record-settingnumber of deportations in the last fewyears and already strengthened borderenforcement stand for nothing.

Under the proposed plan, undocumentedimmigrants would first register with thefederal government and, after successful-ly passing a background security check,paying a fine and any back taxes due,they would be granted “probationarylegal status.” While this is happening, acommission of governors, law enforce-ment officials, and community leadersfrom southwestern border states willimplement and oversee new border secu-rity measures. Until this commissionfinds that these new security measureshave been implemented and are in effect,these “probationary immigrants” will notbe permitted to apply for lawful perma-nent residence.

Comprehensive Immigration Reform and“The Fullness of Time”

(See Immigration Reform on Page 15)

N E W Y O R K

COUNTY LAWYERI N S I D E

Judicial ReceptionRemarks by Hon. KristinBooth Glen.......................7

Marijuana Reform..........13

Miscellaneous Tariff Bill...2

Taxation CommitteeAmicus Brief ....................3

Annual Meeting ................................6

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

Digital Training Center CLEs .........10

Ethics Hotline..................................12

Gun Control...............................Cover

Immigration Reform..................Cover

Judicial Reception Remarks by Hon.

Kristin Booth Glen............................7

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

Marijuana Reform...........................13

Message from Barbara Moses,

NYCLA Foundation President..........6

Message from Stewart D. Aaron,

NYCLA President .............................3

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

Taking Financial Responsibility .....11

Tariff Bill...........................................2

Taxation Committee Amicus Brief ...3

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

What’s Tweeting..............................12

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

April 2013 Visit us at www.nycla.org Volume 7 / Number 21

NYCLA Issues Its Report on Proposed Gun ControlBy Jacqueline C. Wolff, Esq.

The recent events at Sandy HookElementary School in Newtown,Connecticut, are the latest in a series of 47documented mass shootings1 dating backto the 1999 Columbine massacre inColorado. In response, several legislativeproposals regarding gun control are nowon the table, some of which are bipartisan.NYCLA’s Board of Directors engaged in aspecial project to review these proposals,first in terms of whether, had they been ineffect, if they would have prevented pastmass shootings.2 Second, the legislationwas reviewed in terms of whether it couldpass constitutional muster, focusing on theSecond Amendment, due process consider-ations, and the Commerce Clause. Theanalysis concludes that many of the pro-posals may have prevented some of thecarnage. The analysis also concludes thatunder District of Columbia v. Heller3, themost recent statement by the SupremeCourt regarding the Second Amendment,subsequent case law and decisions regard-ing due process and commerce clause con-siderations, most of the proposals appearto rest on safe constitutional grounds.Below is a summary of the NYCLAReport resulting from the project.

The Report first summarizes the currentstatutes covering gun manufacturing, salesand transfer. Essentially, under currentlaw the federal government licensesimporters, manufacturers and dealers to

ship, transport and receive firearms orammunition in interstate commerce andthen regulates sales and transfers by thosefederally-licensed. For example, licenseddealers are prohibited from sellingfirearms or ammunition to certain classesof individuals, including individuals underindictment or convicted felons; unlawfulusers of controlled substances; those adju-dicated mentally defective or committed toa mental institution; or those convicted ofa domestic violence misdemeanor.

The statutes also require that every trans-fer of a firearm by a licensed dealer onlybe completed after the purchaser under-goes a background check using theNational Instant Criminal BackgroundCheck System (NICS). The Reportexplains that the purpose of backgroundchecks is to prevent the sale of firearms toindividuals who are in those classes notpermitted to possess firearms. Currentlaws also require that all firearms sold,delivered or transferred by licensedfirearms dealers include either a safetydevice on the firearm itself or come with agun safe or case. There are no backgroundcheck requirements for selling ammuni-tion. There are also no restrictions on mail

(See Gun Control on Page 14)

April 2013 / The New York County Lawyer2

By Mariana del Rio Kostenwein, Esq.

On December 31, 2012, the “U.S.Manufacturing Enhancement Act of2010” expired.1 The expiration of thispiece of legislation particularly impactsAmerican companies importing rawmaterials, particularly chemicals, thatwill be used to manufacture products inthe United States or those companiesimporting various miscellaneous finishedproducts from abroad for sale in theUnited States.2 These importers wouldhave continued to benefit from thereduced rates of duty had the provisionsof the 2010 Act been renewed. While anew bill called the “U.S. Job Creationand Manufacturing Act of 2013” wasintroduced in the House on January 1,2013 by Rep. Dave Camp, interestingly,Congress had not yet passed the new lawbefore the 2010 Act expired.3 Importersmust now pay duties on merchandise thatonly recently carried a reduced rate orwas duty-free.4 American importersshould, therefore, take appropriate stepsnow to preserve their rights to refunds ofduties for merchandise that qualifies forpreferential duty treatment should the billbecome law later this year and haveretroactive effect.

As importers are well aware, theHarmonized Tariff Schedule of the UnitedStates (HTSUS) is the document that setsduty rates on imports and is also used tocollect statistics on merchandise importedinto the United States.5 Since the HTSUSis a statute, it can only be amended via thelegislative process.The HTSUS is updatedannually and is also often amendedthrough special pieces of legislation thatare lobbied for by particular companies orindustry groups representing the interestsof their members. Bills reducing the tariffrate on certain merchandise are drafted bymembers of Congress and are reviewed byvarious government agencies in order toensure that the reduction of the tariff ratewill benefit American industry.6 If a bill isfound to be “non-controversial,” i.e., thetariff rate reduction request involves mer-chandise that: 1) has no domestic produc-ers; 2) would make U.S. manufacturersmore competitive if imported at a lowerduty rate; and 3) would not result in a lossof revenue of more than $500,000, then

the individual bills are packaged togetherinto a special piece of legislation knownas the Miscellaneous Tariff Bill, or MTB.7The MTB, once passed, temporarily modi-fies Chapter 99 of the HTSUS and pro-vides U.S. manufacturers the opportunityto obtain needed inputs at lower costs inwhat is becoming an increasingly compet-itive global marketplace as well as createjobs in the process. The MTB also resultsin savings for consumers.

As discussed above, today importers findthemselves without the benefits once pro-vided by the 2010 Act and without arenewal in place. For this reason,importers should be aware of: 1) theadministrative procedures established byU.S. Customs and Border Protection(“CBP”) that should be followed in orderto obtain special tariff treatment shouldCongress pass the bill in 2013 withretroactive effect, 2) the possibility thatthe importer may need to file protestswith CBP in case a refund is not obtainedprior to liquidation, and 3) the recordsthe importer must maintain to support aclaim for refunds on merchandise fallingunder heading 9902, HTSUS, shouldCBP request substantiation of the claim.

1. Follow Administrative Proceduresin Order to Claim RefundIf the U.S. Job Creation andManufacturing Act of 2013 is passedlater this year and the reduced tariffrates are given retroactive effect,importers should pay attention to pro-cedures put in place by CBP in orderto claim refunds. In order to make thisprocess as easy as possible, importersshould develop a procedure or put asystem in place for flagging entries onwhich it may wish to obtain dutyrefunds in the future after the MTB ispassed. Importers should also heed thedeadlines for the filing of claims thatare set by CBP and provide the appro-priate information to CBP in order toallow the agency to locate the entry onwhich a claim is filed.

2. File Protests with CBP onLiquidated EntriesLiquidation is CBP’s final assessmentof duties on a particular entry of mer-chandise. CBP must liquidate entrieswith one year of importation, if not,they are deemed liquidated.8 In casean importer’s entry is liquidated byCBP prior to obtaining a refund on

duty paid, the importer should pre-serve its right to the refund by filing aprotest with CBP. A protest must befiled within 180 days following thefinal liquidation of the entry by CBP.9If a protest is denied by CBP, theimporter then has the opportunity tofile an action at the U.S. Court ofInternational Trade and have the claimheard by that court.10

3. Recordkeeping is EssentialUntil the MTB is passed by Congress,however, importers must make surethey are paying the appropriate duty toCBP and should prepare accordinglyin order to request refunds in case thelaw is given retroactive status. As theyalways should, importers should makesure they are keeping adequate recordsin order to substantiate a claim forspecial tariff treatment under heading9902, HTSUS. Documents that animporter should keep on hand includethe entry summary, commercialinvoices, and other documentationrelated to the entry on which a refundwill be claimed.

Mariana del Rio Kostenwein, Esq. is theVice-Chair of NYCLA’s MultilingualLawyering Committee and is currently anAssociate with Simon Gluck & Kane LLP,a firm specializing in Customs andInternational Trade Law. She counselsimporters and exporters as well as otherplayers in the international trade arena.

References:1 See United States Manufacturing EnhancementAct of 2010, Pub. L. No. 111-227, 124 Stat. 2409(2010).2 See Heading 9902, HTSUS (2013).3 See H.R. 6727, 112th Cong. (2013).4 See Heading 9902, HTSUS (2013).5 See Harmonized Tariff Schedule of the UnitedStates, 19 U.S.C. § 1202 (2013).6 See Daniel Griswold, The Miscellaneous TariffBill: A Blueprint for Future Trade Expansion,CATOINSTITUTE’S CENTER FOR TRADE POLICY STUDIES,Sept. 9, 2010, at 2-3.7 See id.at 2.8 See 19 C.F.R. § 162.80(a)(2)(i).9 See 19 C.F.R. § 174.12(e)(1).10 See 28 U.S.C. § 1581(a).

The Miscellaneous Tariff Bill in 2013 –What Importers Need to Know Now

Please join us to hear James R. Silkenat,President-Elect of the American Bar Association,speak on the topic of American Legal Educationat a Crossroads: Training Lawyers and Judgesfor the Future. He will be joined by MichaelCardozo, New York City’s Corporation Counsel.

April 2013 / The New York County Lawyer 3

By Megan L. Brackney, Esq.

Almost every day, there is a new head-line related to United States taxpayerswith unreported offshore bank accounts.In one of its latest enforcement efforts,the United States government has beenserving grand jury subpoenas on hun-dreds of taxpayers who are suspected ofhaving foreign bank accounts, orderingthem to produce their own accountrecords, in effect to aid their own prose-cutions for tax evasion and other offens-es.i These subpoenas present a signifi-cant constitutional question: is the act ofproducing foreign account records a tes-timonial act protected by the FifthAmendment privilege against self-incrimination?

There has been substantial litigationabout this issue over the past two years.Recently, in connection with a petitionfor certiorari filed with the United StatesSupreme Court in In re T.W. v. UnitedStates, No. 12-853, NYCLA’s TaxationCommittee submitted an amicus curiaebrief, arguing that the Fifth Amendmentact of production privilege should apply.NYCLA Taxation Committee member,Caroline Rule of Kostelanetz & Fink,LLP, was the primary author of the ami-cus brief and has represented severalindividuals in connection with grand jurysubpoenas issued in the Southern andEastern Districts of New York.TheNYCLA Taxation Committee submittedthe amicus brief because it believes thatthis is an issue of exceptional constitu-tional importance. Although, as of yet,there is no split between the Courts ofAppeals in these cases, the SupremeCourt has ordered the Solicitor Generalto respond to the petition in T.W., whichmay indicate its interest in this issue.

The petition in T.W. seeks review of theSeventh Circuit decision, In Re SpecialFebruary 2011-1 Grand Jury SubpoenaDated September 12, 2011, 691 F.3d 903(7th Cir. 2012). In that case, the districtcourt initially ruled in favor of the indi-vidual who had been subpoenaed,explaining that “the Government must domore work than simply requiring [thetarget] to incriminate himself by produc-ing his own files if it wishes to find evi-dence during this grand jury investiga-

tion that [he] has an incriminating inter-est in foreign bank accounts.” In reSpecial February 2011-1 Grand JurySubpoena Dated September 12, 2011,852 F. Supp. 2d 1020, 1021 (N.D. Ill.2011). The Seventh Circuit reversed thedistrict court, relying largely on a NinthCircuit decision in In re Grand JuryInvestigation M.H.,, 648 F.3d 1067 (9thCir. 2011). In addition, the Fifth andEleventh Circuits have compelled sub-poenaed parties to turn over their foreignaccount records. In re Grand JuryProceedings, No. 4-10,— F.3d —, 2013WL 452768 (11thCir. Feb. 7, 2013); In reGrand Jury Subpoena, 696 F.3d 428 (5thCir. 2012). The issue soon will be arguedbefore the Second Circuit in In re GrandJury Subpoena dated February 2, 2012,No. 13-403, an appeal from the decisionin United States v. John Doe, 12-MC-553(JFB) (E.D.N.Y. Jan. 14, 2013).

The act of production privilege isdescribed in the Supreme Court’s deci-sion in United States v. Hubbell, 530U.S. 27 (2000),which held that the FifthAmendment affords the same protectionto the testimonial aspects of the act ofproducing documents as it does to anyother compelled testimony. In the recentcases involving grand jury subpoenas offoreign bank account records, the gov-ernment has argued that the FifthAmendment privilege against self-incrimination does not apply becausethese taxpayers were required by regula-tion to maintain their foreign bankaccount records. The required recordsdoctrine arises from Shapiro v. UnitedStates, 335 U.S. 1 (1948), a case decidedwhen the contents of private papers werestill considered to be protected by theFifth Amendment under Boyd v. UnitedStates, 116 U.S. 616 (1886). Shapiroconsidered whether records that wererequired to be kept by statute were “pub-lic” or “private,” which was then the crit-ical question in determining whether therecords were privileged. Since Shapiro,however, the Supreme Court has aban-doned Boyd, and concluded that the FifthAmendment privilege does not protectthe contents of records, public or private.Instead, it protects individuals againstbeing compelled to produce recordswhen the act of producing them wouldbe testimonial and incriminatory.

Following this reasoning, the SupremeCourt held in Fisher v. United States, 425U.S. 391 (1976), and United States v.Doe, 465 U.S. 605, 67-68 (1984), thatthe act of producing documents inresponse to a subpoena can have a testi-monial or communicative aspect of itsown, aside from the contents of the docu-ments. In Grosso v. United States, 390U.S. 62 (1968), the Supreme Courtdeveloped a three-part test that must besatisfied before the required records doc-trine can be applied: (i) “the purposes ofthe United States’ inquiry must be essen-tially regulatory”; (ii) the informationsought must be “of a kind which the reg-ulated party has customarily kept”; and(iii) “the records themselves must haveassumed ‘public aspects’ which renderthem at least analogous to public docu-ments.”

In the recent cases involving grand jurysubpoenas for foreign bank accountrecords, the government and the courtshave relied on the required records doc-trine to compel compliance. Specifically,31 C.F.R. § 1010.420, promulgated underthe Bank Secrecy Act, 31 U.S.C. § 5311et seq. (the “BSA”), requires anyonehaving “a financial interest in or signato-ry authority over” a foreign bank accountto maintain for five years, and keepavailable for inspection, records contain-ing the “name,” “number or other desig-nation,” and “type” of account; the“name and address of the foreign bank orother person with whom such account ismaintained”; and “the maximum value ofeach such account during [each year].”Id. This regulation operates in conjunc-tion with 31 C.F.R. § 1010.350, underwhich any financial interest or otherauthority over a foreign financial accountmust be reported annually to Treasury onForm TD F 90-22.1, “Report of ForeignBank and Financial Accounts,”common-ly-known as an “FBAR.”

In its amicus brief, the NYCLA TaxationCommittee argued that the SeventhCircuit improperly collapsed the entireGrosso test into just its first prong byholding that because it believes that thegovernment's inquiry is essentially regu-latory, the records required by the regula-tion must be customarily kept by those

NYCLA’s Taxation Committee Files Amicus Curiae BriefUrging the United States Supreme Court to Protectthe Fifth Amendment Act of Production Privilege

Dear Readers:

On March 18, NYCLA celebrated the50th anniversary of the U.S. SupremeCourt’s decision in Gideon v. Wainwright,which recognized the constitutional rightto counsel in a criminal case. That deci-sion has particular resonance with mesince my law firm, Arnold & Porter, rep-resented Clarence Earl Gideon pro bonoin the U.S. Supreme Court.

The panel discussion that occurred onMarch 18 during our program illuminatedthe fact that despite the passage of 50years, the full promise of Gideon remainsunfulfilled. Our legal services providerssimply do not have the time or resourcesto provide adequate representation tomany criminal defendants.

Part of NYCLA’s mission is to provide“free legal services for the indigent, low-income and other persons in need” and sothe Association encourages all of its mem-bers to assist in providing legal representa-

tion to those who cannot afford to pay forit. We also invite attorneys to participate inour pro bono projects — a variety of mean-ingful opportunities that use volunteer attor-ney time efficiently to meet pressing com-munity needs. As a profession, we owe it toour citizens and our courts to ensure thatconstitutional imperatives are being met.

Tweet me @NYCLAPres and share howyou are helping to fulfill the promise ofGideon.

Stewart D. AaronPresidentNew York County Lawyers’Association

Stewart D. AaronPresident, New York County

Lawyers’Association

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(See Taxation Committee on Page 12)

Special Guest Speakers Address SwissBanks, Smuggling and Other AssetRecovery Issues on April 18: The 2007National Money Laundering StrategyReport estimated that over $36 billion annu-ally was being secretly transferred throughU.S. bank accounts and U.S. shell compa-nies. In addition, kleptocrats, Ponzischemers, divorcing spouses, etc., can con-ceal assets by parking them in Swiss orother foreign bank accounts.

Join special guest speakers Jack Blum,Esq., associate counsel, assistant counsel, orspecial counsel to three U.S. Senate com-mittees/subcommittees, Robert Fiechter,Des Gouttes & Partners, GenevaSwitzerland who is also Deputy Secretaryof the Supervisory Board of the SwissBank’s Code of Conduct and Program ChairFred Abrams, Esq., who located tens of mil-lions of dollars hidden in offshore taxhavens and is cited by Forbes Magazine, TheNew York Times, MoneyLaundering.com,Reuters and FoxBusiness News, as theyanalyze:

• how bank secrecy laws, multiple juris-dictions and smuggling are utilized inschemes to conceal vast sums of money

• mutual legal assistance treaty relief andusing letters rogatory as asset recoverytools

• ways whistleblowers, or other tipsters,may help sniff out these monies, and

• the difficulty lawyers face in dealingwith whistleblowers – either as clientsor as tipsters.

Ethics Programs This Month: JoinNYCLA’s Ethics Institute, CriminalJustice Section, Tort Law Section andSolo/Small Firm Practice Committee forthe following programs addressing specif-ic ethical issues:• Criminal Law and Ethics: ThePresent State of Brady, A View fromBoth Sides, Tuesday April 23, 2013: Apanel of experts including BruceGreen, Fordham Law School, Hon.Barry Kamins, Admin. Judge, Crim.

Matters, 2nd Jud. Dist., NYC Crim.Ct., Timothy J. Koller, Ex. Asst. DA,Richmond County, John P. O’Mara, Jr.,Asst. DA, Kings County, JohnSchoeffel, Legal Aid Society and EllenYaroshefsky, Cardozo School of Law,discuss the ethical issues faced byprosecutors and defense attorneysrelated to the Brady decision• Hot Ethical Issues in Tort Law,Tuesday, April 30, 2013: ProgramChair Richard M. Maltz, Counsel,Frankfurt, Kurnit, Klein & Selz, PC,Alan Friedberg, Special Counsel NYSCommission on Judicial Conduct,Barry Temkin, Mound Cotton Wollan& Greengrann, and CatherineSheridan, Esq., former Dep. ChiefCounsel, App. Div., 2nd Dept. Officeof Special Counsel for GrievanceMatters, will discuss the hot buttonethical issues of concern to tortlawyers today, including the ethicalparameters of using social media andthe ethical limitations in charging, col-lecting and sharing fees.

Interactive Hands On Workshop onWhen to Litigate and When to Mediate:Join Lewis Tesser, Tesser, Ryan &Rochman, LLP, concentrating his practicein litigation and mediation, representinglicensed professionals and professionalpractices, administrative law and commer-cial law, for To Litigate or Mediate?When and Why, Wednesday, April 24,2013, a special program exploring theissue of when it is best to litigate a matterand when mediation is the preferredcourse of action. After an introductory dis-cussion, including an analysis of the ethi-cal implications, the program will featurea workshop using hands on exercises andhypotheticals.

Interested in a Program, But Can’t Makeit to the Live Lecture?

NYCLA’s CLE Institute has formed a strate-gic partnership with Lawline.com, a leadingdistributor of online content, to stream live

webinars of many of our live programs. Besure to check the nycla website for a list ofupcoming webinars, or visit the NYCLAbranded on-demand and live webinar pageat http://nycla.furthered.com/cle/index.php

April and Early May Programs

Bridge the Gap 1 – A Program for NewlyAdmitted AttorneysConsecutive Fridays, April 12 & 19, 2013;9:00 AM – 5:00 PM16 MCLE Credits: 3 Ethics; 7 PP/LPM, 6Skills; Transitional and Non-transitional; 16NJ Credits (3 Ethics; 13 General)

Construction Insurance: WhatConstruction Counsel Should KnowTuesday, April 16, 2013; 6:00 PM –9:00 PM3 NY & NJ Credits: Breakdown TBD;Transitional and Non-transitional

Swiss Banks, Smuggling and Other AssetRecovery IssuesThursday, April 18, 2013, 6:00 PM – 9:00 PM3 NY Credits: 1 Ethics; 1 Skills; 1 PP;Transitional and Non-transitional; 3 NJCredits: 1 Ethics; 2 General;

Criminal Law and Ethics: The PresentState of Brady, A View from Both SidesTuesday, April 23, 2013; 6:00 PM – 8:00 PM2 NY & NJ Credits: 2 Ethics; Transitionaland Non-transitional

To Litigate or Mediate? When and WhyWednesday, April 24, 2013; 6:00 PM – 9:00PM3 NY Credit: 1 Ethics; 2 Skills; Transitionaland Non-transitional; 3 NJ (1 Ethics; 2General)

Marketing and Social Media Trends forAttorneysThursday, April 25, 2013; 6:00 PM – 8:00 PM2 NY Credits: 1 Ethics; 1 LPM; Transitionaland Non-transitional; 2 NJ Credits (1Ethics; 1 General)

Hot Ethical Topics in Tort LawTuesday,April 30, 2013; 6:00 PM – 8:00 PM2 NY & NJ Credits: 2 Ethics’ Transitionaland Non-transitional

Managing Rent Regulated PropertyTuesday, April 30, 2013; 9:00AM – 12:00 PM3 NY/NJ Credits: Breakdown TBA

The Role of Empathy in Judicial DecisionMakingThursday, May 2, 2013; 6:00 PM – 9:00 PM3 NY Credits: 1 Ethics; 2 PP; Transitionaland Non-transitional; 3 NJ Credits: 1Ethics; 2 General

How to Handle an EmploymentDiscrimination CaseConsecutive Tuesdays, May 7 & 14, 2013;6:00 PM – 9:00 PM6 NY Credits: 2 Ethics; 2 Skills; 2 PP;Transitional and Non-transitional; 3 NJCredits: 2 Ethics; 2 General

Advice From More Experts: MoreSuccessful Strategies for WinningCommercial Cases in New York StateCourtsTuesday, June 11, 2013; 9:00AM – 5:00 PM8 NY Credits: 1 Ethics; 4 Skills; 3 PP/LPM;Transitional and Non-transitional; 8 NJCredits: 1 ethics; 7 General

April 2013 / The New York County Lawyer4

Spring at the CLE InstituteCLE INSTITUTE

All NYCLA’s CLE Institute courses nowavailable for New Jersey MCLE Credit

New York County Lawyers’Association’sCLE Institute is currently certified as anAccredited Provider of continuing legaleducation in the State New Jersey.

Please note that Tuition Assistance is avail-able for qualified attorneys for live programsoffered by the CLE Institute. Check our web-site at www.nycla.org for more informationand how to apply for Tuition Assistance. Checkour website for course details, faculty, com-plete program descriptions and pricing.

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

Do you need up-to-the-minute practicalinformation and strategies for winningcommercial cases in New York Statecourts? Did you attend last spring’s pro-gram on commercial litigation and wantto uncover even more strategies for win-ning commercial cases?

All litigators from experienced to newlyadmitted attorneys who seek the advantagefor their clients in commercial litigation inNew York State courts should attendNYCLA’s special CLE program, “AdviceFrom More Experts: More SuccessfulStrategies for Winning CommercialCases in New York State Courts” onTuesday, June 11, 2013 from 9 a.m. to 5p.m. Led by Program Chair and treatiseEditor-in-Chief Robert L. Haig of KelleyDrye & Warren LLP in New York City,this program will feature an extraordinarypanel of accomplished professionalsincluding seven distinguished judges, 31well known commercial litigators, and sixprominent in-house counsels for major cor-porations. This is truly a one of a kind eventand it is only available through NYCLA.

Utilizing interactive panel discussions,program speakers will focus on strategies

and practical advice for maximizing theeffectiveness of each stage of the litiga-tion. In particular, they will discuss tech-niques for advancing a client’s interests aswell as potential pitfalls or traps for theunwary, and will cover:

• Effective handling of dispositivemotions• Document discovery• Mediation and arbitration• Ethical issues in commercial cases• Selection of experts and expert testimony• Trials and appeals to the AppellateDivision• Insights into the client’s expectations,preferences, and requirements

Not only will you take away expertknowledge when you attend this program,but you will receive a copy of the critical-ly acclaimed six-volume treatiseCommercial Litigation in New York StateCourts, published by NYCLA andThomson Reuters, and a CD-ROM con-taining forms and jury instructions – a$660.00 retail value. Written by anincredible brain-trust of 144 expert attor-neys and judges throughout New YorkState, this treatise provides everything

needed to handle commercial cases frominitial assessment, through pleadings, dis-covery, motions, trial, and appeal. Greatemphasis is placed on strategic considera-tions specific to commercial cases along-side comprehensive coverage of 38 areasof substantive law, including strategy,checklists, forms and jury charges.

Speakers include:Commercial Division Justices, BarbaraR. Kapnick, Jeffrey K. Oing, and ShirleyWerner Kornreich, former CommercialDivision Justice Bernard J. Fried, andAppellate Division Justices Richard T.Andrias, Helen E. Freedman, and KarlaMoskowitz.Leading litigators, Robert J. Anello;Garrard R. Beeney; Charles G. Berry;James E. Brandt; Frederick A. Brodie;Michael B. Carlinsky; J. Peter Coll, Jr.;William A. Escobar; Robert S. Fischler;Stephen Fishbein; Thomas J. Hall;Thomas J. Kavaler; Louis B. Kimmelman;T. Barry Kingham; Harvey Kurzweil;Deborah E. Lans; Jay P. Lefkowitz; DavidJ. Lender; Andrew J. Levander; HeidiLevine; Mitchell A. Lowenthal; WilliamR. Maguire; William G. McGuinness;Gary P. Naftalis; A. Robert Pietrzak;

Bradley I. Ruskin; Jeffrey Q. Smith; MaryKay Vyskocil; Kevin J. Walsh; Michael R.Young; and Stephen P. Younger.In-house counsel for major corporations,John Hartje, chief litigation counsel, NCRCorporation; Todd Kahn, senior vice presi-dent, general counsel and secretary, Coach,Inc.; Michael W. Leahy, vice president,deputy general counsel and head of litiga-tion, American International Group, Inc.;Michele Coleman Mayes, vice president,general counsel and secretary, The NewYork Public Library; Randal S. Milch,executive vice president and general coun-sel, Verizon Communications, Inc.; andElizabeth D. Moore, general counsel,Consolidated Edison, Inc.

NYCLA Member Advantage:

Unique CLE & Treatise Combo — Win Your Next Commercial Case!

NYCLAMembers: attend thisunique program for only $250(treatise included—a $660.00 retailvalue) and receive 8 CLE credits(1 Ethics; 4 Skills; 3 ProfessionalPractice).

Space is limited—reserve yourspace—visit www.nycla.org or call(212) 267-6646

April 2013 / The New York County Lawyer 5

April 2013 / The New York County Lawyer6

Notice of Annual Meeting & ReceptionMay 23, 2013 at 5:30 p.m.

NYCLAHome of Law, 14 Vesey Street

Annual Report of the PresidentTreasurer’s Report

Election of Officers and Directors

On February 4, 2013 the following were nominated as officers and directors by the Committee on Nominations:

Officers:Barbara Moses, President

Lewis F. Tesser, President-ElectCarol A. Sigmond, Vice PresidentStephen C. Lessard, TreasurerDonald M. Zolin, Secretary

Directors–Class of 2016:

Committee on Nominations–Class of 2016:

Members who are unable to attend the annual meeting will be able to vote in advance using a proxy that will be emailed to all members.

Dear Friends:

You know that NYCLA offers CLE pro-grams, hosts networking events andreceptions, sponsors lectures and publicfora, and provides innovative pro bonoassistance to needy New Yorkers. Youmay not know that NYCLA also plays avibrant role in identifying, analyzing andcommenting on key public policy pro-posals affecting practitioners and the jus-tice system. Through its specializedCommittees and Sections, and with sup-port from the Association’s leadershipand staff, NYCLA members spearheadthese efforts: identifying issues, writingreports, drafting communications, prepar-ing testimony, and ultimately determiningNYCLA’s point of view and assistingNYCLA to influence the New York com-munity on everything from marriageequality to changes to the not-for-profitlaw. Here are some examples, all drawnfrom the first two months of 2013:

In early January, the Criminal JusticeSection submitted comments to the NewYork State Permanent SentencingCommission regarding its determinatesentencing proposal for non-violent, non-sex, non-drug felonies. While theCommission has made clear that it doesnot seek to increase sentences, theSection raises grave concerns, in its com-ments, that this will be the unintended

consequence of the wide sentencingranges proposed.

At the end of February, NYCLA’sTaxation Committee—which proposesand reviews legislation on questions per-taining to federal, state and municipaltaxation—filed an amicus brief in sup-port of the petitioner in T.W. v. the UnitedStates of America. The decision onappeal held that a regulation requiringmaintenance of private records of foreignbank accounts nullifies the FifthAmendment act-of-production privilege.The committee, led by Counsel ofRecord and Committee Chair MeganBrackney of Kostelanetz & Fink, LLP,submitted its brief to the Supreme Courton February 11, 2013. Brackney shedsfurther light on the issues arising fromthe T.W. appeal in her article on this topicon page 3.

Meanwhile, a few weeks earlier,NYCLA’s Non-Profit OrganizationsCommittee sent a letter to the New YorkState Attorney General’s Office com-menting on the proposed Non-ProfitRevitalization Act. The letter applaudsthe legislation in large part but critiquesthe proposed requirement that all not-for-profit corporations registered tosolicit charitable contributions in theState, with revenues in excess of$500,000, file a report prepared by anindependent certified public accountant.The Committee explains that thisrequirement places an undue burden onmany small not-for-profit organizations,and recommends that the thresholdrequirement for an independent audit bya certified public accountant beincreased to one million dollars.

Most recently, NYCLA released a reportanalyzing a number of proposed federalgun control measures and recommendingpassage of those that are likely to passConstitutional muster and that, had theybeen in effect, could have prevented oneor more of America’s recent mass shoot-ing tragedies. The report, which wasapproved by the Board of the Associationon March 11, also recommends thatCongress provide incentives to the stateto enact similar legislation.

As you can see, NYCLA’s members,

through Committees and Sections playan active role in advancing the issuesimportant to their practice areas, aswell as those important to the commu-nity at large. Unfortunately, your duesdo not cover all the costs of the pro-grams and services like these thatmake us proud to be NYCLA mem-bers. We depend on your contributionsto support the work that we do to ben-efit the membership, the profession,and the public. To help support theseprograms, you can simply go towww.nycla.org and choose “Giving toNYCLA.” You can also mail a check,payable to the “NYCLA Foundation,”to NYCLA Foundation, 14 VeseyStreet, New York, NY 10007. We aregrateful for every contribution.

NYCLA needs both your support andyour ideas. Please do not hesitate to con-tact me with suggestions for fundraisingor related topics. You can reach me atbmoses@maglaw.com.

Sincerely,

Barbara MosesPresident of the NYCLA Foundation

M E S S A G E F R O M B A R B A R A M O S E SP R E S I D E N T O F T H E N Y C L A F O U N D A T I O N

Jai ChandrasekharHon. Helen FreedmanHon. Emily Jane GoodmanAndrew T. HahnRonald J. Katter

Jay G. SaferDiana S. SenEdward M. SpiroRichard A. WilliamsonJacqueline C. Wolff

Stewart D. AaronScott M. BermanMichael J. McNamara

Hon. Joseph Kevin McKayAsha Smith

April 2013 / The New York County Lawyer 7

When I was first asked to speak I ofcourse asked “about what?” and wastold, about anything, the joy of judging,but definitely about 5 minutes. Well, itis a joy to be a judge, despite the manyissues and challenges we, or I shouldsay you, face, and in many ways it’s thebest job in the world. It’s the best job,in my view, because of the incrediblepower judges have, not only in resolv-ing the disputes of litigants beforethem, but in affecting, and even helpingto change the world. The power comesnot only from the cases you decide, butfrom the way you are, the behavior youmodel, the choices you make.

It comes from the ability to notice, in avery different way than others do, topay attention, and to focus that atten-tion, in a way very different from othersin the system – just because you are thejudge.

What I want to ask you to notice, as youprobably already do with gender bias, orracial bias, or bias based on people’ssexual orientation, all areas in whichjudges and our courts have consciouslyfocused to eliminate discrimination, isone of the last and most invisiblesources of bias, disability.

Forgive me if this I already familiar,but with the enactment of theAmericans with Disabilities Act in1990, there has been a sea change inthe way disability is understood, nowas socially constructed — that is, notas an unfortunate condition someonehas that needs to be “cured,” but as amisfit between the existing, or builtenvironment and the person with animpairment. So if there’s a mismatch,and we believe, as we are required todo when we take our oaths, in equaltreatment and equality, then we arealso required to provide “reasonableaccommodations” to ameliorate themisfit and create an equal opportunityto participate in our system of justice.

Disability issues arise in the courts in anumber of places and ways — inemployment—you could think serious-ly about hiring a person with a disabili-ty, visible or otherwise, or promotingthe hiring and advancement of peoplewith a wide range of disabilities —blindness, deafness, mobility impair-ment, learning and intellectual disabili-ties, even, that scary word, mental ill-ness (as an aside I have been workingfor the past three years on the ABADisability Rights Commission with a

lawyer with Bipolar disorder, andalthough it has sometimes been chal-lenging, he is absolutely brilliant andwe have accomplished an amazingamount).

Recognizing and accommodating dis-abilities makes it possible for people toparticipate fully and equally, whetheremployees, or jurors, witnesses or liti-gants. It could be sign language inter-preter or CART for a deaf litigant, orensuring that a witness with a mobilityimpairment testifies at the same level asother witnesses so her or his testimonyis not unconsciously devalued, or givingextra breaks during a trial to allow anelderly juror to stay focused and partici-pate fully. It comes up in the languagewe use, in opinions, in the courtroom, inchambers. We need to use “people first”language, that is, language that recog-nizes a whole person, not someonedefined by his or her disability. Thus aperson with a mobility impairment, nota handicapped person, or a cripple, aperson with a mental illness, not “schiz-ophrenic.”

If you recognize disability as part of thehuman condition (and, as the survivorof a very nasty and temporarily dis-

abling cancer, I can personally assureyou it is) and not an object of pity, peo-ple around you will too.

And if you have an invisible disability,I’d urge you to be open about it. You’vemanaged to make it here, and your suc-cess can bring hope and encouragementto young lawyers or those younger stillwho might only be considering a careerin the law, but worry about their abilityto make the grade because of their dis-ability and the stigma that attaches, andto educate all those around you. (I’mthinking of how the arrival of openlygay judges completely changed theatmosphere for LGBT people in thecourt system.)

Recognizing, accepting and accommo-dating difference is ultimately what ourcommitment as judges — and ashumans — is to equality. I urge you toinclude disability what you notice, andwhat you have the power to change.

Thank you for your patience and yourattention.

Hon. Kristin Booth Glenn is theSurrogate-retired, Surrogate’s Court,County of New York.

Remarks by Hon. Kristin Booth Glen at February 26th ReceptionHonoring Newly Elected, Appointed, Re-Elected and Re-Appointed Judges

April 2013 / The New York County Lawyer8

Young Lawyers’ SectionHosts Guinness Beer Tasting

On February 19 at an event hosted by Young Lawyers’ Section, NYCLA mem-bers learned the history and heritage of the Guinness brand while tasting vari-ous beers and learning pouring tricks.

Con Edison General Counsel Receives 11thAnnual Ida B. Wells-Barnett Justice Award

On February 28, Elizabeth D. Moore (center), General Counsel of ConsolidatedEdison Company of New York, was honored with the 11th Annual Ida B. Wells-Barnett Justice Award by the New York County Lawyers’Association and theMetropolitan Black Bar Association. She is joined by Stewart D. Aaron (farleft), NYCLA President and head of Arnold & Porter’s New York office; Hon.Pam Jackman-Brown (second from left), Judge, Civil Court of the City of NewYork and Chair of the Ida B. Wells-Barnett Awards Committee; Nadine Fontaine(second from right), President of the Metropolitan Black Bar Association; andHon. Yvonne Lewis (far right), Justice, Supreme Court, Kings County andHonorary Board Member of the Metropolitan Black Bar Association.

Forum Discusses IssuesFacing Afghan WomenManizha Naderi, Executive Director ofWomen for Afghan Women, spoke at aNYCLA public forum, “Women inAfghanistan: Today and Tomorrow,” onMarch 11 about the current status ofwomen in Afghanistan and what thefuture holds. This program, hosted byNYCLA’s Justice Center and Foreignand International Law and Women’sRights Committees, informed attendeesabout what is happening now to womenin Afghanistan and what Women forAfghan Women is doing to combat vio-lence against women and girls and pro-vide educational resources, and provid-ed insight into what problems Afghanwomen are facing here in the U.S..

Entertainment Law Forum Draws Large CrowdMembers from the entertainment industry came out to NYCLA’s March 4 publicforum, “Agents, Managers & Entertainment Attorneys: What the Heck Do TheyDo?” which included a panel discussion featuring entertainment industry expertshosted by NYCLA’s Entertainment, Intellectual Property, & Sports Section.Attendees learned the differences between the roles of an agent, a manager, andentertainment attorney and gained insight into when an attorney might want todirect an entertainment client to speak with an agent or a manager instead oftaking on a task he/she isn’t comfortable with or fit to do.

RECENT EVENTS

NYCLA Honors JudgesNYCLA’s Committee on the Supreme Court held areception on February 26 honoring newly elected,appointed, re-elected, and re-appointed judges.Welcome remarks were given by Hon. A. Gail Prudenti,Chief Administrative Judge of the Courts of New YorkState and Special Remarks by Hon. Kristin Booth Glen,Surrogate-retired, Surrogate’s Court, County of NewYork.

April 2013 / The New York County Lawyer 9

UPCOMING EVENTSEvents Calendar

All events, unless otherwise noted, will beheld at NYCLA Home of Law, 14 Vesey Street.Visit the Association’s website, nycla.org formore details, schedule changes and additions,and to R.S.V.P. for events, which are subjectto change.

April

2013 Edith I. Spivack Award ReceptionThursday, April 4 – 6 p.m.Sponsored by NYCLA’s Women’s RightsCommitteeDorchen A. Leidholdt, Director of theCenter for Battered Women’s LegalServices at Sanctuary for Families, will behonored for her work in the area ofwomen’s rights. The Spivack Award wasnamed for the woman who was the drivingforce for the establishment of NYCLA’sWomen’s Rights Committee in 1972, active-ly recruiting outstanding women attorneysand playing a significant role in identifyingcritical areas of discrimination againstwomen. The award was established in 1997to honor Ms. Spivack and mark the 25thanniversary of NYCLA’s Women’s RightsCommittee.

50th Charles Evans Hughes MemorialLectureWednesday, April 10 - 6 p.m.Sponsored by Hughes Hubbard & Reed LLPJames R. Silkenat, American Bar AssociationPresident-Elect (2012-13), and Attorney atLaw with Sullivan & Worcester LLP, willlecture on “American Legal Education at aCrossroads: Training Lawyers and Judges forthe Future” at this annual special event.Michael Cardozo, the Corporation Counselof the City of New York, will give introduc-tory remarks.

Conversations with In-House Counsel IIThursday, April 11- 6:45 p.m.New York Law School, 185 West BroadwaySponsored by NYCLA’s Young Lawyers’SectionNYCLAmembers, NYLS students, andNYLS alumni are invited to meet with a dis-tinguished panel of in-house attorneys andhear about the peaks and valleys of workingin-house. Panelists include: Kim Bressant-Kibwe, Esq., The American Society for thePrevention of Cruelty to Animals (ASPCA),NYCLAAnimals Rights Committee Chair;Stephen Broer, Esq., Guardian Life Insurance;Marilyn Flood, Esq., Counsel, New YorkCounty Lawyers’Association; and Daniel K.Wiig, Esq., Municipal Credit Union (MCU);

NYCLAYoung Lawyers’ Section Co-Chair;NYCLADirector. Moderator and ProgramChair: Dorianne Van Dyke, Esq., Media LawResource Center, Chair, Subcommittee onNetworking and Social Events, NYCLAYoung Lawyers’ Section.

In ChambersTuesday, April 16 - 12:30-1:30 p.m.Sponsored by NYCLA’s Young Lawyers’SectionThis “In Chambers” event will feature guesthost Hon. Denny Chin, Associate Judge, U.S.Court of Appeals for the 2d Circuit.

MayLaw and Literature Award ProgramWednesday, May 1 – 6 p.m.Sponsored by the Law and LiteratureCommitteeAuthor Noah Feldman will be presentedwith an award for his book Scorpions fol-lowed by a reception and book signing.

2013 Law Day LuncheonFriday, May 10 - Reception - 11:30 a.m.;Lunch - 12:30 p.m.Cipriani Wall Street, 55 Wall StreetSponsored by NYCLA’s Supreme CourtCommittee

Join NYCLA for its annual Law DayLuncheon, where the Justice Louis J.Capozzoli Gavel Award will be presentedto Hon. Robert S. Smith, Associate Judgeof the New York Court of Appeals. TheCapozzoli Gavel Award commemoratesthe life of Justice Louis J. Capozzoli, alawyer and judge who was devoted topublic service and embodied the highestideals of the profession. NYCLA estab-lished this award in 1984, and it has beengiven out each year to distinguished attor-neys and judges ever since.

In PracticeWednesday, May 15 - 12:30-1:30 p.m.Sponsored by the Young Lawyers’ SectionThis “In Practice” program will featureCatherine Christen, Counsel to the SpecialNarcotics Prosecutor and Former NYCLAPresident.

2013 Annual Meeting: Induction andReceptionThursday, May 23, 2013 – 5:30 p.m.All NYCLA members are invited toattend the Association’s annual inductionceremony of NYCLA officers and mem-bers of the Board.

April 2013 / The New York County Lawyer10

Law Firm RelocationI recently moved and found it to be anexhausting, grueling and frustrating expe-rience. It got me to thinking about themoving of a Law Office and what ourmembers, facing a move, should be read-ing to prepare for such an effort.

My go-to book/electronic resource forlaw firm management these days is BestPractices in Legal Management: AComprehensive Guide, Barry Jackson,RoseannLentin, et all. Albany:NYSBA.2010. It provides a wide range of adviceand includes a chapter on “Office Spaceand Security Needs” that specificallyaddresses relocation, provides a pre-movechecklist, advice on the move itself, andwhat to do after the move. Another chap-tercovers “Operations Management” andincludes sections on Disaster Planningand Business Recovery, a BusinessRecovery Planning Checklist, and a Post-Disaster Checklist.

Those of you with a NewYork State BarAssociation-Attorney Borrower’s Card(NYSL-ABC) can access an electroniccopy of this book at no charge throughthe NYSL-ABC Loislaw subscription.Click on “Bar Publications,” then “NewYork CLE Library”, and you will see themany digital titles from the NYSBA.

Using another database made availableat no charge through the NYSL-ABC, Iwent to Legaltrac, an index to1600+legal periodicals (and having full-

text for 200+ titles) to see if there wereany articles on moving a lawoffice.Using a keyword search for“Office Relocation” I found bibliograph-ic information on several articles inLegal Management, though not the fulltext of the articles themselves.

New York residents who are admitted topractice law in New York are eligible to

receive a New York State Library-Attorney Borrower’s Card. This cardentitles the holder to special servicesfrom the New York State Library,including remote internet access to over90 databases, four of which are legaldatabases. Contact NYCLA’s Director ofLibrary Services, Dan Jordan, at djor-dan@nycla.org to get information andan application for the New York State

Library - Attorney Borrower’s Card,your tax dollars at work.

Suggestions as to NYCLA LibraryServices are always welcome. Send yourquestions and comments to the Directorof Library Services, Dan Jordan, at djor-dan@nycla.org or call 212-267-6646,x201.

Electronic Research Center CLE ProgramsUnless otherwise noted, courses arefree and open to the public. Register atnycla.org. Questions? Contact IrinaChopinova at ichopinova@nycla.org or212-267-6646 x203.

April

Lexis: IApril 10 – 10:30 – 11:30 a.m.1 MCLE Credit: 1 Skills; Transitional

Lexis: IIApril 10 – 12:00 – 1:00 p.m.1 MCLE Credit: 1 Skills; Transitional

Lexis: Company & Financial ResearchApril 10 - 1:30 - 2:30 p.m.1 MCLE Credit: 1 Skills; Transitional

Westlaw: AdvancedApril 11 – 10-11 a.m.1 MCLE Credit: 1 Skills; Transitional

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

Using Bloomberglaw.com forLitigationApril 17 – 10 - 10:50 a.m.1 MCLE Credit: 1 Skills; Transitional(Also NJ)

Using Bloomberglaw.com for aCorporate Transactional PracticeApril 17 - 11:05 - 11:55 a.m.1 MCLE Credit: 1 Skills; Transitional(Also NJ)

Westlaw: BasicApril 23 - 1:30 - 2:30 p.m.1 MCLE Credit: 1 Skills; Transitional

Westlaw: Entertainment LawApril 23 – 3 - 4 p.m.1 MCLE Credit: 1 Skills; Transitional

U.S. Bankruptcy Court Electronic CaseFiling SystemApril 24 – 10 a.m.-12:30 p.m.2.5 MCLE Credits: 2.5 Skills;Transitional (Also NJ)Member: $65 Non-member: $85Non-legal Staff: $35

MayLexis: IMay 7 – 10:30– 11:30 a.m.1 MCLE Credit: 1 Skills; Transitional

Lexis: Cite Checking with Shepard’sMay 7 – 12:00 – 1:00 p.m.1 MCLE Credit: 1 Skills; Transitional

Lexis: Labor & Employment &Worker’s Compensation ResearchMay 7 - 1:30 - 2:30 p.m.1 MCLE Credit: 1 Skills; Transitional

Westlaw: Introduction to Westlaw NextMay 9– 10-11 a.m.1 MCLE Credit: 1 Skills; Transitional

Westlaw: Securities Law Research onWestlaw NextMay 9 - 11:30 a.m.-12:30 p.m.1 MCLE Credit: 1 Skills; Transitional

U.S. Bankruptcy Court Electronic CaseFiling SystemMay 22 – 10 a.m.-12:30 p.m.2.5 MCLE Credits: 2.5 Skills;Transitional (Also NJ)Member: $65 Non-member: $85Non-legal Staff: $35

Westlaw: Advanced Research onWestlaw NextMay 29 - 1:30 - 2:30 p.m.1 MCLE Credit: 1 Skills; Transitional

Westlaw: Insurance Law Research onWestlaw NextMay 29 – 3 - 4 p.m.1 MCLE Credit: 1 Skills; Transitional

LIBRARY NOTES

Many litigators and appellate attor-neys use Records and Briefs of priorcourt decisions as a standard part oftheir case preparation. If your casebears similarities to the case for whichyou are seeking Briefs, reading thearguments of the opposing appellateattorneys in the prior case can speedup, deepen, and sharpen your under-standing of the issues presented to thecourt.

The Record for the earlier case usuallycontains the pleadings from the priorlitigation, the transcript from the trial,expert testimony, and copies of itemsentered into evidence. Many litigatorsread the whole Record or part of ittogain a granular understanding of thecase that they, or opposing counsel,are relying on as authority in theirpresent litigation.

The NYCLA Library has access toselected Briefs through Lexis andWestlaw and has the best collectionin New York City for Records andBriefs from the four AppellateDivisions and the New York Court ofAppeals. These Records and Briefs(sometimes called Cases and Points)are in print for early 20thand mid-20thcentury decisions and in micro-film and microfiche for the last 30plus years.

NYCLA members may come to theLibrary and read records and briefs inprint or, in a dedicated microfilm read-er, at no charge. Members interested incopying pages from Records and Briefscan do so themselves for brief periodsof time at $0.50 per page. MostNYCLA Library patrons have theNYCLA Staff copy and email PDFs of

Records and Briefs to them. Whilesome Records and Briefs may be short,most tend to run hundreds or thousandsof pages. When a Member is interestedin seeing what is in the record, we usu-ally send the Table of Contents for theRecord. The patron is asked to return acopy of the table of contents, identify-ing what materials they are requesting.The NYCLA Library staff is able todeliver Records and Briefs to yourdesktop in an efficient manner at aprice that is good value, though notalways inexpensive.If you would like acopy of our “charge sheet” for our feebased services, just ask and I will sendit to you.

If you are considering using Recordsand Briefs as part of your researchmethodology, come in and take-a-look.

Records and Briefs at the NYCLA Library

To Advertise in New YorkCounty Lawyer, Call 631-427-7000

April 2013 / The New York County Lawyer 11

By Thomas A. Martin, Agent,New York Life Insurance Company

The old adage, “People don’t plan tofail, they fail to plan,” can be especiallytrue when it comes to finances – andthis can be just as true of attorneys asanyone else. Being financially responsi-ble doesn’t just happen – it must be aconscious decision you make to live notjust for today but for your future selfand possibly your future loved ones.Especially in today’s economy, the besttime to start taking control of yourfinances is today.

It’s Never Too Late to Plan – for Todayand TomorrowYou may find yourself wonderingwhen (or if) you’ll ever fully realizethe life you envisioned for yourselfwhen you began your path in the law.But no matter what stage of life you’rein, whether just starting out or nearingretirement, with the help of a financialprofessional you can identify andadopt strategies that help meet yourcurrent financial needs while creating apath to help reach long-term financialgoals. The good news is that it’s nevertoo late to start, and a proactiveapproach now can help avoid disap-pointments later on.

Ask yourself these questions:

• Are you saving enough? Increasing yoursavings today can have a major impactlater on. What financial goals can you settoday to help make your dreams a reality?

• Are our loved ones adequately pro-tected? Would your family or partner beable to maintain their standard of livingin the event something happened to you?Buying a life insurance policy — orincreasing your coverage — can ensurethat your loved ones are protected.

•What about college expenses? Ifyou're a parent or guardian, it’s never tooearly to start saving for your children’scollege expenses. Starting a college edu-cation fund now may allow them toattend the college of their choice withoutunduly burdensome student loans.

• Are you prepared for retirement? Ifnot, how much more of your currentincome can you allocate to retirementsavings vehicles, whether 401(k) plans,IRAs, cash value life insurance or othervehicles. With retirement possibly lasting20 or 30 years, the more resources youhave, the less likely any fear of outlivingthose resources will prevent you fromenjoying those years.

Taking The First (or Next) Step: CanYou Afford to Wait?Critical decisions such as buying ahome, getting married or having chil-dren require deliberate, thoughtful con-sideration. Indeed, the outcome of anyone of these decisions can irrevocablychange your life for better or worse.But delaying the implementation ofbasic strategies can have a negativeimpact in several key ways, resulting ina costly mistake for you and your lovedones. To illustrate, let’s look at just oneexample: the purchase of cash value lifeinsurance.

Whole Life Insurance: FinancialProtection Plus Cash ValueAccumulation With Tax1 DiversificationIn its simplest form, whole life insuranceprotects the people who depend on youfor financial support – no matter whathappens to you. Aside from providinggenerally tax-free money2 to your bene-ficiaries to replace your income, wholelife insurance also offers guaranteed3cash value accumulation on a tax-deferred basis4 as long as the policyremains in force. The bulk of that cashvalue can be accessed, generally tax-free,5 at any time and for any purpose,whether to fund an education, supple-ment our retirement income, or meet anemergency cash need (policy loansaccrue interest at the current variableloan interest rate and reduce the totalcash value and total death benefit by theamount of the outstanding loan andaccrued loan interest).

To Act or Not to Act: The Effects ofWaitingSince a portion of the premiums paidaccumulates cash value each year, cashvalue accumulation can be considerableover the long term, especially since taxeson the growth are deferred (so the soonerwe start, the faster our cash value mayaccumulate, generally speaking).

A whole life policy is also eligible toreceive dividends, if and when declaredby the insurance issuer (unlike cash val-ues, dividends are not guaranteed, andpast dividends are not indicative of future

dividends). Policyholders have severaloptions for dividends usage, includingdividend distributions in cash or addition-al life insurance coverage. This additionalinsurance coverage, in turn, has its owncash value and is eligible for additionaldividends–for no additional premiums.

Time is simply not on your side when itcomes to delaying the implementationof sound financial strategies, particular-ly in the case of life insurance: waitingcan cost you the increased cash avail-able to you in life as well as the benefitpaid to your beneficiaries; premiumsgenerally only rise as you age; andwhile you defer your decision, youmight decide to start living your dreamof deep sea diving, exhilarating andhazardous, or you may suffer an unex-pected health condition, which mayeven place your insurability in jeopardy.In the worst-case scenario, if you wereto die before taking action, the cost ofwaiting would be the death benefit yourbeneficiaries would not receive.

Conclusion: Let Us BeginNo matter where you are in life, a goodfinancial professional may be able tohelp you to develop and implement aproper financial strategy to achieve yourfinancial goals, maintain your currentlifestyle and ease worries about thefuture. As a lawyer, you’re fortunate tohave been trained to examine the issuesand weigh the pros and cons of anymajor decision. Yet as human beings,you’re just as apt to use that process as

an excuse for what really may amount toprocrastination. Given the importance ofany financial decision, including a deci-sion to purchase life insurance, youwant to gather all the necessary infor-mation and choose the coverage thatbest suits your needs. But you do your-self no favor if you forget that postpon-ing your decision can prove to be costly.You can realize tomorrow’s goals anddreams by taking action today.

This educational third-party article isbeing provided as a courtesy by ThomasA. Martin, J.D. Mr. Martin enthusiasti-cally joined the insurance and financialprofession and New York Life after asuccessful, nearly 20 year career prac-ticing commercial real estate law.*Foradditional information on the informa-tion or topics discussed, please contactTHOMAS A. MARTIN at (914) 253-7125or (917) 626-2024.*Mr. Martin does notprovide legal advice in his current role.

References:1 Neither New York Life Insurance Company, itsagents, or its employees are in the business of pro-viding tax, legal or accounting advice, and none isintended nor should be inferred from the commentsand observations herein. Any tax-related discussionherein was prepared to assist in the promotion ormarketing of the transactions or matters addressedin this material. It is not intended (and cannot beused by any taxpayer) for the purpose of avoidingany IRS penalties that may be imposed upon thetaxpayer.2 See IRC Section 101.3 Guarantees backed by the claims-paying ability ofthe issuer.4 SeeTreas. Reg. 1-446-1.5 See IRC Section 72.

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regulate and that the records thus assumepublic aspects by virtue of the require-ment that they be maintained. TheNYCLA Taxation Committee argued thatif the Supreme Court were to separatelyanalyze each prong of the Grosso test, itwould be required to conclude that therequired records doctrine does not applyto the grand jury subpoenas for foreignaccount records.

First, an inquiry under the BSA is not“essentially regulatory,” but seeks toadvance the Government’s “criminal, tax,or regulatory investigations or proceed-ings.” 31 U.S.C. § 5311. In this context,“essentially regulatory” applies to a“valid civil regulatory regime” thatserves nonprosecutorial ends. Rajah v.Mukasey, 544 F.3d 427, 442 (2dCir.2008). There is no civil regulatorypurpose for the BSA regulations; rather,their aim, as expressed in the BSA itselfand its legislative history, is law enforce-ment. Second, the records are not of atype that the regulated party would ordi-narily maintain. Foreign banks, especial-ly in the “secrecy” jurisdictions that theBSA targets, are notorious for failing toprovide customers with records; as a

practical matter, individuals regulated by31 C.F.R. § 1010.420 are unlikely to pos-sess, much less maintain, the recordsrequired by the BSA regulation. Third,foreign bank account records do not have“public aspects,” such as is contemplatedin Grosso and Shapiro, where the peti-tioners were engaged in commerce withthe public, and were able to do so solelybecause of licenses requiring them tomaintain certain records, which thenassumed the character of public records.There is nothing public about the unli-censed activity of owning a private for-eign bank account. Rather, the relation-ship between the government and a tax-payer with a foreign bank account is nodifferent than that of a taxpayer with adomestic bank account, and the SeventhCircuit has twice held that the act of pro-duction privilege protects domestic finan-cial records, even though they arerequired to be maintained by statute. SeeSmith v. Richert, 35 F.3d 300 (7th Cir.1994) and United States v. Porter, 711F.2d 1397 (7th Cir. 1983).

In holding that a wagering statute’srecord-keeping provisions did not cloakthe records with “public aspects,” theSupreme Court previously stated:The Government’s anxiety to obtaininformation known to a private indi-vidual does not without more renderthat information public; if it did, noroom would remain for the applica-tion of the constitutional privilege.

Nor does it stamp information with apublic character that the Governmenthas formalized its demands in theattire of a statute; if this alone weresufficient, the constitutional privilegecould be entirely abrogated by anyAct of Congress. Marchetti v. UnitedStates, 390 U.S. 39, 57 (1968).

The NYCLA Taxation Committee arguedthat in the cases compelling productionof foreign bank account records, the gov-ernment’s desire to obtain informationregarding United States taxpayers’ for-eign bank accounts cannot overcomethese taxpayers’ Fifth Amendment rights.This is especially true, where, as in thecase of the grand jury subpoenas for for-eign bank account records, there is noAct of Congress, but merely a regulationrequiring the records to be maintained.The NYCLA Taxation Committee thusemphasized that the courts should becareful and rigorous in applying theGrosso test to ensure that the constitu-tional Fifth Amendment act of productionprivilege cannot be eliminated by regula-tion. Because the government has issuedhundreds of these subpoenas with no endin sight, the NYCLA Taxation Committeeis hopeful that the Supreme Court willstep in and protect the bedrock FifthAmendment privilege against self-incrimination before it is entirely erodedby the lower courts.

Megan L. Brackney, Esq. is the Chair ofNYCLA’s Taxation Committee and a part-ner at Kostelanetz & Fink, LLP in NewYork.

References:1 Although exact statistics are not available, at thistime last year, it was estimated that more than 150grand jury subpoenas had been issued. See M.Sapirie, International Tax Enforcement 3.0, 134 TaxNotes 1359 (Mar. 12, 2012).

The Committee on ProfessionalEthics accepts both written andtelephone inquiries on ethics mat-ters and provides advisory opin-ions. For additional information,call the members listed below.

April 1-15Malvina Nathanson212-608-6771

April 16-30Mark Bower212-240-0700

May 1-15Don Savatta212-983-6000

May 16-31Richard Maltz212-705-4804

Please Note: Assignments aresubject to change.

Questions to the Hotline are limit-ed to an inquiring attorney’sprospective conduct. The Hotlinedoes not answer questions regard-ing past conduct, the conduct ofother attorneys, questions that arebeing litigated or before a disci-plinary committee or ethics com-mittee, or questions of law. Thisnotation shall not be construed tocontain all Hotline guidelines. Fora full discussion of Ethics Hotlineguidelines, please see the articlebelow, “Guidelines on NYCLA’sEthics Hotline,” published in theSeptember 2006 issue of NewYork County Lawyer.

Ethics HotlineTaxation Committee FilesAmicus Curiae Brief(Continued from Page 3)

NYCLA Comments on and Supports IssuesNYCLA frequently reports, commentson, and supports issues affecting theNew York City legal community and hasrecently commented on or supported thefollowing issues:

• Supreme Court CommitteeSubmits Comments to OCA on 22NYCRR 202.12 and 22 NYCRR202.70, which would require par-ties to confer with respect to poten-tial electronic discovery mattersprior to the preliminary conference,and expand the CommercialDivision Rule’s list of e-discoveryissues for the parties to address.

• Matrimonial Law Section Submits

Comments to OCA RegardingAccess to Forensic EvaluationReports in Child Custody Matters

• Civil Court Practice Section andSupreme Court Committee SubmitJoint Comments to OCA opposing22 NYCRR Section 202.5-c, whichrelated to proof of service by mailthrough attorney’s affirmation

• Taxation Committee Files AmicusBrief in Support of Petitioner inT. W. v. the United States ofAmerica

Learn more on the News & Publicationssection of nycla.org.

April 2013 / The New York County Lawyer 13

By Clara Flebus, Esq.

In recent years, a shift has occurred nation-wide in political attitudes toward recreation-al and medical marijuana use. In November2012, Washington and Colorado residentsvoted to legalize small amounts of recre-ational marijuana. Similar reform bills havebeen proposed this year in other states.Meanwhile, medical marijuana is alreadylegal in 18 states and the District ofColumbia. This group not only includesWashington and Colorado, but also theneighboring states of New Jersey,Connecticut, Rhode Island andMassachusetts. The reform wave hasreached Congress, where measures wererecently introduced to de-federalize the mar-ijuana policy by treating marijuana like alco-hol and letting states decide whether to keepit illegal, and create a taxation frameworkfor marijuana production and sale in statesthat allow it. When a Gallup Poll first askedabout legalizing marijuana, in 1969, 12 per-cent of Americans favored it, while 84 per-cent were opposed. As of October 2011,some 50 percent of Americans, according toGallup, thought that the use of marijuanashould be made legal.

This year, New York State legislators haveintroduced several bills that may have achance of becoming law soon, or will, at aminimum, advance the issue of marijuanareform in line with the national trend.Considerable attention and debate surroundsthose proposals designed to decriminalizethe possession of small quantities ofcannabis for private use. New York’s currentmarijuana laws date back to the MarijuanaReform Act of 1977 (the Act). Under theAct, possession of less than 25 grams ofmarijuana was reduced from a misdemeanorto a non-fingerprintable violation, punish-able only by a fine, except where the suspectwas found in possession of the marijuana ina public place, and the substance was opento public view. The intent of the Act was toavoid stigmatizing people possessing smallamounts of marijuana for personal use, andwasting law enforcement resources thatcould be directed to prosecuting seriouscrimes. More specifically, in New York pri-vate possession of marijuana below 25grams is a violation punishable under PenalLaw section 221.05 - Unlawful Possessionof Marijuana, with penalties that range froma $100 to $250 fine, and/or up to 15 days injail depending upon whether it is a first, sec-ond, or third offense. However, if the sus-pect is found in possession of a similarquantity in a public place, and the marijuanais “burning” or “open to public view,” theoffense is a Class B misdemeanor, pursuantto Penal Law section 221.10(1) - CriminalPossession of Marijuana in the 5th Degree,resulting in arrest and criminal charges. Thepenal statute defines a public place as “aplace to which the public or a substantialgroup of persons has access, and includes,but is not limited to, highways, transporta-tion facilities, schools, places of amusement,parks, playgrounds, and common areas ofapartments houses or hotels.” (N.Y. PenalLaw § 240.00[1]).

People arrested for a misdemeanor marijuanaoffense face long-term negative conse-quences. Their future employment prospectsmay be jeopardized, as well as their immi-gration status, driver’s license, and eligibilityfor federal school grants or loans. In 2008,the New York Civil Liberties Union(NYCLU) published a report entitled

“Marijuana Arrest Crusade,” which analyzedthe NYPD’s arrest practices during the priorthree decades, and highlighted a problemwith the implementation of the penal law.The report found that from 1997 to 2006,more than 353,000 people were arrested forpossessing small amounts of marijuana. Thatfigure was eleven times greater than the pre-vious decade, and prompted NYCLU advo-cates to designate New York City as theworld’s “marijuana arrest capital.” In addi-tion, the study revealed that the arrests wereracially skewed, as 52 percent of the suspectswere African Americans, 31 percentHispanics, and only 15 percent Caucasian. Italso indicated that most people arrested wereyounger than 26 years old, and about 91 per-cent of them were men. Recent statisticsfrom the Division of the Criminal JusticeServices show that in 2011, the number ofpeople arrested for low-level marijuanaoffenses was over 50,000. It has been calcu-lated that between 2002 and 2011, the NYPDmade 400,000 marijuana possession arrests.Nearly every person arrested was hand-cuffed, placed in the back of a police car orvan, and taken to the local police stationwhere they were photographed, fingerprint-ed, and often held overnight in a city jail.

Numerous research studies and accounts inthe media maintain that many of the arrestsfor possession of small quantities of marijuanawere the result of “stop and frisk” encounters.Suspects with a small amount of marijuana intheir pocket or bag were stopped by a policeofficer and asked to empty their pockets andbags. After disclosing the marijuana to publicview at the direction of the police officer, thesuspect was charged with a misdemeanor pur-suant to section 221.10(1), and arrested.Significantly, had the substance remained hid-den, the suspect would have been subject onlyto a fine, pursuant to section 221.05. Lawenforcement’s “stop and frisk” practice isdeemed to have caused the increase of arrestsfor marijuana possession over time.

Indeed, the practice was addressed by PoliceCommissioner Raymond Kelly, who issuedan order in September 2011, directing officersnot to arrest and charge individuals with aviolation of section 221.10(1) if the marijua-na recovered was disclosed in public sight atan officer’s direction. Kelly emphasized thatwhen an individual is requested to engage ina behavior resulting in the public display ofmarijuana, that behavior constitutes only aviolation of section 221.05, and does not sup-port criminal charges associated with section221.10(1). After the issuance of the order,low-level marijuana arrests decreased slightly.However, in 2012, possession of small quan-tities of marijuana remained the number-onecause of arrests in New York City.

In this context, proposals have been made tochange New York marijuana laws as a moreefficient solution to the problem of “stopand frisk” arrests. The underlying rationaleof the proposed reforms is that the numberof improper arrests for possession of mari-juana in plain view will decrease if penaltiesfor marijuana possession are standardized byreducing public possession from a misde-meanor to a violation punishable by a fine.Last year, Governor Andrew Cuomo calledfor the decriminalization of public posses-sion of small amounts of marijuana, empha-sizing that public smoking should still bepunishable as a misdemeanor. However, aproposed bill failed to receive sufficient sup-port in the state legislature by the end of the

Marijuana Reform in theNew York Context

(See Marijuana Reform on Page 15)

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April 2013 / The New York County Lawyer14

or online sales of ammunition by federallylicensed firearms dealers.4

The Report notes that the definition of“dealer” is one selling guns as a “regularcourse of trade with the principal objec-tive of livelihood and profit.”5 This defini-tion generally excludes gun show sellers,pawn shop owners, and “occasional” sell-ers of guns. They, therefore, do not needto comply with federal gun control lawsrelating to licensing, safety, and back-ground check requirements.

In reviewing the proposed legislation, theReport starts with the 2013 AssaultWeapons Ban.

Assault Weapons BanSenator Dianne Feinstein and PresidentObama have independently proposed toreinstitute the 1994-2004 semiautomaticassault weapons and high-capacity maga-zine ban. Senator Feinstein’s bill wouldban the importation, manufacture, sale,transfer or possession of “semiautomaticassault weapons,” a term defined in thestatute to include semiautomatic rifles,pistols and shotguns (1) that have a fixedmagazine containing more than 10 roundsor (2) that have the capacity to accept adetachable magazine and have any one ofa series of characteristics commonlyreferred to as “military features.” The billwould also outlaw the importation, manu-facture, sale, transfer or possession of“large capacity ammunition feedingdevices”6 after the date of enactment.

According to the Report’s analysis of theavailable data, both the Newtown,Connecticut and Aurora, Colorado shoot-ings, which resulted in 100 fatalities andinjuries, involved the use of weapons thatwould be banned under the AssaultWeapons Ban of 2013.

AmmunitionThe Report summarizes the proposed leg-islation relating to ammunition as follows.The “Stop Online Ammunition Sales Actof 2013” introduced by SenatorLautenberg would add restrictions onmail/Internet sales of ammunition by fed-erally licensed dealers so that these salesare regulated in the same way asmail/Internet sales of guns, and the“Ammunition Background Check Act of2013” introduced by Senator Blumenthal,would institute background checks forsales of ammunition by federally licenseddealers so that these sales are treated thesame way as sales of firearms. The Reportnotes that neither proposal prevents a con-victed felon or other prohibited class frompurchasing ammunition in a private salefrom a non-licensed dealer.

Gun Shows – Background ChecksSenator Lautenberg also proposed the“Gun Show Background Check Act of2013,”7 which would require that allfirearm sales at gun shows take placethrough a licensed importer, manufactureror dealer. In turn, they would be requiredto conduct a NICS background check.

In the Columbine shooting, Eric Harris andDylan Klebold purchased two of theweapons used from an unlicensed seller at aColorado gun show through a straw pur-chaser. Following the shootings, the pur-chaser testified that she would not have pur-chased the weapons had she been requiredto undergo a background check.8 TheReport notes also that from 1994 to 2009,background checks prevented 1.9 millionattempted firearm purchases, primarily pre-venting sales to felons and fugitives.9

Straw PurchasesPresident Obama has also called for legis-lation imposing penalties to prevent“straw purchases” of firearms. In theSenate, the “Stop Illegal Trafficking inFirearms Act of 2013” introduced bySenator Leahy would make it a crime foranyone other than a federally licensedimporter, manufacturer or dealer to pur-chase a firearm on behalf of, or with theintent to transfer it to, any other person.

The “Gun Trafficking Prevention Act of2013,” introduced by Senator Gillibrandand co-sponsored by Senator Kirk, wouldmake it a crime to transfer or receive twoor more firearms if the transferor or recipi-ent, respectively, knows or has reasonablecause to believe that the use or possessionof the firearm by the transferee wouldresult in a felony.

In the House of Representatives, the “GunTrafficking Prevention Act of 2013,” intro-duced by Representative Maloney and co-sponsored by Representatives Scott Rigelland Pat Meehan, tracks the language of itscounterpart in the Senate, except that theHouse version is triggered by the transferof just one firearm, rather than two.

Gun Manufacturer/Seller ImmunityThe Report notes that under the FederalProtection of Lawful Commerce in ArmsAct (PLCAA), passed in 2005, firearmsmanufacturers and sellers are immunefrom civil lawsuits arising from theunlawful misuse of firearms distributed ininterstate commerce. Legislation has beenintroduced by Representative Schiff thatwould end this immunity.10

ConstitutionalityThe Report addresses the constitutionalissues for each of the proposed measures.It notes that, prior to Heller, the SupremeCourt ruled that the Second Amendmentsupports a collective right to possess andcarry arms in connection with militaryservice, but does not confer any justiciableindividual right. Heller established that theSecond Amendment protects an individualright to keep a firearm in one’s home forpurposes of self-defense. Two years later,in McDonald v. Chicago, the Courtextended its ruling to the individual states.Since Heller, over 80 cases have beenbrought challenging the constitutionalityof various prohibitions on gun ownership,and nearly all have failed.11

This is because, according to the Report, inHeller, the Supreme Court recognized thatan individual’s Second Amendment rightto possess firearms is not unlimited. Forexample, the Court ruled that ownershipand possession can reasonably be regulatedwhere the firearm is “dangerous andunusual.” The Report suggests, therefore,that if semiautomatic weapons are viewedas “dangerous and unusual,” an argumentcould be made that they could be subjectto increased regulation under Heller.

In People v. James, an appellate court inCalifornia held in 2009 that California’sassault weapons ban did not violate theSecond Amendment because, under theSupreme Court’s reasoning in Heller, theSecond Amendment only guarantees aright to possess the type of weapon typi-cally possessed by law-abiding citizens forlawful purposes. The court concluded thatthe assault weapons outlawed byCalifornia’s law were of such an “unusualand dangerous” nature that they were “notthe types of weapons that are typicallypossessed by law-abiding citizens for law-ful purposes such as sport hunting or self-defense; rather, these are weapons of war.”

Likewise, the Report notes, in 2011, theWashington, D.C. laws replacing thoseoverturned by the Supreme Court in

Heller, including an assault weapons andhigh-capacity magazine ban, were chal-lenged before the D.C. Circuit Court ofAppeals (“Heller II”). The D.C. Circuitupheld the assault weapons ban, finding thatit was “difficult to draw meaningful distinc-tions” between semiautomatic weapons andthe types of automatic weapons – namelythe M-16 – that the Supreme Court has heldare subject to reasonable regulation as “dan-gerous and unusual.” The court also foundthat high-capacity magazines posed such adanger to innocent civilians and lawenforcement officers that banning suchmagazines was likely to promote importantgovernmental interests.

The Report notes that whether theSupreme Court would uphold a similarassault weapons and high-capacity maga-zine ban at the federal level remains to beseen. But, the Report suggests that theJames and Heller II decisions could pro-vide arguments for why, based on thespeed, volume and the characteristics ofthese weapons, they could be regulated as“unusual and dangerous” weapons forpurposes of the Second Amendment. TheReport anticipates that the challengewould be that assault weapons used in themass shootings may, in fact, be used forself-defense and/or sport. The Reportnotes that this is where better data collec-tion by the government would be useful.If the number of deaths caused by assaultweapons used by criminals and massshooters or as a result of “mistakes” in thehome is significantly greater than thenumber of times they have been used insuccessful self-defense situations, it wouldbe easier to determine whether suchweapons are “unusual or dangerous.”

The Report concludes that there do notappear to be any significant constitutionalissues raised by the proposed legislationrelating to high-capacity magazines,because federal laws are already in placethat parallel these measures with respectto firearms (background checks, classes ofprohibited purchasers, etc., directed at theactivities of federally licensed dealers).

As to the background check legislation,the Report reiterates that the SupremeCourt held in Heller that regulations limit-ing access to firearms and ammunition forcertain types of individuals are permittedunder the Second Amendment. Also, theReport notes that given the fact that gunsales fall squarely in the stream of inter-state commerce, regulation of those salesby Congress falls within its powers underthe Commerce Clause. To find that a simi-lar requirement for gun shows is unconsti-tutional, a litigant would have to establishthat gun shows exist outside the traditionalchannels of commerce which, the Reportstates, would appear difficult to do.

Even if background checks are made nearlyuniversal, however, the Report notes thatthe regime is only as strong as the informa-tion in the NICS database. Had Virginiasubmitted records, the Virginia Tech shoot-er may have been prevented from purchas-ing the two semiautomatic handguns heused to shoot his classmates due to a statejudge’s earlier finding that he “presented animminent danger to himself as a result ofmental illness.”12 The Report also pointsout that Congress may be unable to forcestates to comply with data-sharing man-dates.13 A report by the GovernmentAccountability Office, while noting thatstates find the “incentives” to complyoffered by the Federal Government (underthe NICS Improvement Amendment Act of2007) to be helpful, also states that the fed-eral government has to do a better job ofassisting the States with the technologicalissues entailed in providing NICS withmental health information that does notinvolve a court-ordered commitment.

Finally, the Report notes that the twobipartisan proposals designed to punishand deter straw purchases likely would notinfringe upon Second Amendment rights.In particular, the “Gun TraffickingPrevention Act of 2013” regulates transfersof firearms that are known or reasonablybelieved to evade restrictions on who maypossess a firearm – restrictions that theSupreme Court recognized as legitimateand reasonable under the SecondAmendment in Heller. Outlawing thesestraw purchases does not impede the pos-session of firearms by law-abiding, respon-sible citizens. The Report did not identifyCommerce Clause issues, because strawpurchases and subsequent transfers associ-ated with the purchases undoubtedly occurin the stream of interstate commerce. TheReport notes there may be issues criminal-izing the transfer itself where the recipientis not in a prohibited class, as could be thecase in Senator Leahy’s bill..

Additional Proposals

Incentivizing StatesThe Report notes that a number of othermeasures have been put in place at the statelevel. The Report suggests that incentiviz-ing states to meet minimum standards forgun ownership could result in a series of“best practices” that reduce gun violence.

The Report points out that although in2012 the Supreme Court struck down theMedicaid expansion provisions of theAffordable Care Act (ACA) as unconstitu-tional under the Spending Clause, that rul-ing may not preclude Congress from usingits spending power to encourage states toenact certain gun policies, should theinducement be reasonable and not be sodramatic as to defund the state’s entire lawenforcement mechanism.

The Report, therefore, supports incentiviz-ing states to adopt regulations already ineffect in other states, including:

• Licensing and registration of weapons;• Limiting purchases to one gun permonth;• Requiring the reporting of lost orstolen firearms;• Requiring mental health caregivers toreport certain defined conduct to theauthorities;• Imposing waiting periods; and• Requiring insurance in order to obtaina license/permit.

Improving Gun Safety TechnologyThe Report concludes with additional sug-gestions for Congress to explore. Forexample, President Obama’s plan forreducing gun violence included a directiveto the Attorney General to “review exist-ing and emerging gun safety technologies”and issue a report on his findings as wellas a challenge to the gun industry to“develop innovative and cost-effective gunsafety technology and provide prizes forthose technologies that are proven to bereliable and effective.”14 The Report sug-gests that the federal government considerrequiring federally licensed gun manufac-turers to include certain safety features ontheir products, as automobile manufactur-ers are required to meet fuel efficiencystandards by the Environmental ProtectionAgency. To do this, the Report suggeststhat Congress end the exemption forfirearms and ammunition in the ConsumerProduct Safety Act so that these productscan be regulated by the CPSC like thou-sands of other consumer products.

The Report notes that there is no pendinglegislation that suggests expanding the typesof prior misdemeanors that warrant preclud-ing a prospective gun owner from purchas-ing a gun. Nor did the Board find data to

Gun Control(Continued from Page 1)

(See Gun Control on Page 15)

April 2013 / The New York County Lawyer 15

support the proposition that a significantnumber of mass shooters had previouslybeen convicted of a violent or gun-relatedmisdemeanor. But since the available data isincomplete, the Report suggests that, shouldthe CDC be re-funded to study gun violenceand/or should the restrictions on ATF’s abil-ity to collect and disseminate data be lifted,further inquiry into shooters’ prior misde-meanor convictions is warranted to deter-mine whether Congress should consider anexpansion of prohibited owners.

Jacqueline C. Wolff, Esq., a partner andCo-Chair of the Corporate Investigationsand White Collar Defense Group atManatt, Phelps & Phillips, LLP, is a mem-ber of the Board of Directors of the NewYork County Lawyers’Association.

References:1 A “mass shooting” is defined by the FBI asinvolving four or more victims, excluding theshooter, with no “cooling off period” between vic-tims.” The Report used this definition but excludedkillings of multiple family members by anotherfamily member and committed in the home as wellas gang or drug related shootings.2 These shootings resulted in 642 victims; overhalf of which were fatalities. At least eight-sevenpercent (87%) of these mass shootings involvedsemiautomatic weapons or assault weapons and atleast fifty-one percent (51%) involved extended orhigh capacity magazines. In at least seventy per-cent (70%) of the mass shootings the weapons hadbeen purchased legally, approximately half ofthose purchases from licensed dealers whichshould have entailed background checks. Of theremaining shooters most would not have passedeffective background checks, had they beenrequired. For more information as to how theReport arrived at these numbers, please seeReport.3 554 US 570 (2008)4 18 USC §§ 922(b), (d).5 Regulations governing the operation of theNICS are issued by the Department of Alcohol,Tobacco and Firearms (“ATF”), and contemplatethat most records in the index will come fromfederal agencies, with some limited number beingprovided by state and local law enforcementagencies on a voluntary basis. Since 2007, thefederal government has sought to incentivizestates to provide thorough and complete recordsto the NICS by tying “Justice Assistance Grant”funding to states’ compliance with record com-pleteness goals and authorizing new grant pro-grams to reward improved provision of informa-tion to the NICS. 28 CFR § 25.4. The SupremeCourt struck down an attempt by the federal gov-ernment to compel state law enforcement person-nel to assist the background checks in Printz v.United States, 521 U.S. 898 (1997).6 18 USC § 922(t).7 18 USC § 922(z).8 See e.g., http://smartgunlaws.org/ammunition-reg-ulation-policy-summary/; Laurie Ure, “Democratspropose limits on online ammo sales,” CNN.com(Jul. 30, 2012) available athttp://www.cnn.com/2012/07/30/politics/democrats-

ammo-sales.9 18 U.S.C. § 921(a)(21)(D)10 Assault Weapons Ban of 2013, S. 150, 113thCong. (2013).11 “Large capacity ammunition feeding device”is defined in the bill to mean “a magazine, beltdrum, feed strip, or similar device, including anysuch device joined or coupled with another inany matter, that has an overall capacity of, orthat can be readily restored, changed or convert-ed to accept, more than 10 rounds of ammuni-tion,” excluding “an attached tubular devicedesigned to accept, and capable of operatingonly with, .22 caliber rimfire ammunition.”Assault Weapons Ban of 2013, S. 150, 113thCong. (2013) § 2.12 Stop Online Ammunition Sales Act of 2013, S.35, 113th Cong. (2013)13 Ammunition Background Check Act of 2013, S.174, 113th Cong. (2013).14 Gun Show Background Check Act of 2013,S.22, 113th Cong. (2013).15 “Columbine gun-buyer unaware of motives,”United Press International, (Jan. 27, 2000).16 See Department of Justice Bureau of JusticeStatistics, “Background Checks for FirearmTransfers, 2009 - Statistical Tables,” (Oct. 20, 2010)at Table 1.17 Stop Illegal Trafficking in Firearms Act of 2013,S. 54, 113th Cong. (2013).18 Gun Trafficking Prevention Act of 2013, S. 179,113th Cong. (2013).19 Gun Trafficking Prevention Act of 2013, H.R.452, 113th Cong. (2013).20 15 U.S.C. §§ 7901-7903.21 PLCAA was recently successfully challenged inWilliams v. Beemiller, Inc.,22 wherein the N.Y.Appellate Division, 4th Department, ruled the lawcannot immunize a manufacturer supplying a guntrafficking ring with 181 Saturday Night Specials.23 See, e.g., United States v. Cruikshank, 92 U.S.542 (1876); United States v. Miller, 307 U.S. 174(1939).24 District of Columbia v. Heller, 554 U.S. 570(2008).25 McDonald v. Chicago, 561 U.S. 3025 (2010).26 See, e.g., United States v. Rene E., 583 F.3d 8(1st Cir. 2009) (rejecting argument that ban onjuveniles possessing handguns violates SecondAmendment); Kachalsky v. County of Westchester,708 F.3d 81 (2d Cir. 2012) (upholding prohibitionon concealed carry); United States v. Bledsoe, 334Fed. Appx. 771 (5th Cir. 2009) (prohibition onstraw purchases); United States v. Scroggins, 551F.3d 257 (5th Cir. 2010) (prohibition on possessionby felons); United States v. Skoien, 587 F.3d 803(7th Cir. 2009) (prohibition on possession by indi-vidual with domestic violence misdemeanors);United States v. Henry, 688 F.3d 637 (9th Cir.2012) (prohibition on machine guns).27 Heller, 554 U.S. at 627.28 People v. James, 174 Cal. App. 4th 622, 674-77(Cal. App. 3rd Dist. 2009).29 Id. at 676.30 Heller v. District of Columbia, 680 F.3d1244,1262-64 (D.C. Cir. 2011).31 Id. at 1263.32 Id. at 1263-64.33 27 CFR § 478.11 (including in definition of“mental defective” individuals determined by acourt to be a danger to themselves or others).Michael Luo, “U.S. Rules Made Killer Ineligible toPurchase Gun,” New York Times (Apr. 21, 2007) atA1.34 Printz v. United States, 521 U.S. 898 (1997).35 Nat’l Fed. of Independent Business v. Sebelius,132 S.Ct. 2566, 2607 (2011).36 Presidential Memorandum of Jan. 16, 2013 at p. 10.

Gun Control( Continued from Page 14)

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In other words, a select group of south-western appointees will determine, forthe rest of the country, if and when newborder security measures are effective.Until such a determination is made (andthere is no built-in time frame for doingso),these “probationary immigrants” willbe held hostage and not be permitted toapply for lawful permanent residence.

To add yet one more impediment, thesesame “probationary immigrants” would besent to the “back of the line” for a greencard and, after that, U.S. citizenship.While the proposal acknowledges that cur-rent backlogs for immigrants applying forfamily and employment-based visas cancause delays upwards of twenty years ormore, neither the need to reduce theseexisting backlogs nor a plan to do so areaddressed in the proposal. Separate (andsomewhat less arduous) pathways to citi-zenship would be created for unauthorizedimmigrants who came to this country aschildren (the “DREAM”ers) and for unau-thorized agricultural workers. What consti-tutes the “back of the line” is not dealtwith meaningfully at all.

Thus, “the fullness of time” has beenachieved.

This is the equivalent of a defendant in acriminal action being found guilty andordered to jail with his/her period ofincarceration to be completed “whencrime was eliminated.” I doubt that anycriminal defense attorney would acceptsuch a sentence, or that such a sentencewould be lawful.

Unless and until this first part of the plancontains firm and defined deadlines forits implementation, the Senators’ propos-al is just one more example of SirHumphrey’s response to wait for “thefullness of time.” The sad part is that thecharacter of Sir Humphrey was meant tobe mocked and laughed at, while theseSenators appear to be serious in theirproposal. One can only hope that a morereasoned approach will be found whichcan be adopted quickly, rather than “inthe fullness of time.”

Eugene Glicksman, Esq., Co-Chair ofNYCLA’s Immigration and NationalityCommittee, is a partner at Glicksman &Cardoso practicing immigration andnationality law.

year. Cuomo reaffirmed his commitment todecriminalization in his 2013 State of theState address. He stated that arrests for posses-sion of marijuana in open view account for 15percent of all arrests in New York City, with82 percent of those arrested being AfricanAmerican and Hispanic, and 69 percent beingunder age 30. According to Cuomo, a reformis needed because these arrests stigmatizeyoung people with a criminal record for therest of their lives, which makes it harder to getinto school or find a job.

In January 2013, a bill (S3105) was intro-duced in the Senate that eliminates the“open to public view” offense, while main-taining that portion of section 221.10(1)

that classifies smoking marijuana in publicas a misdemeanor. Another bill (S3315)proposes that public possession of smallamounts of marijuana be a violation pun-ishable by a fine whether the substance isin plain view or “burning.” Both bills aregeared toward preventing improperenforcement and overcharging under thepenal law, in line with the decriminaliza-tion scheme for possession of small quanti-ties of marijuana for personal use createdby the reform of 1977.

Clara Flebus, Esq., a NYCLA member, is anAppellate Court Attorney in New York StateSupreme Court, and holds an LL.M. degreein International Business Regulation,Litigation and Arbitration. She is a memberof NYCLA’s Appellate Courts, Arbitrationand ADR, and Foreign & International LawCommittees, and Young Lawyers’ Section.

Immigration Reform( Continued from Page 1)

Marijuana Reform( Continued from Page 13)

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April 2013 / The New York County Lawyer16