STATEMENT OF CLIENT RIGHTS

Many litigants, especially in matrimonial cases, will retain and then let go more than one lawyer. I have been there, either as the new lawyer or the one being let go. So I would like to post the Statement of Clients Rights (which can be found at Section 1210.1 of the Joint Rules of the Appellate Division or 22NYCRR§1210.1):

1. You are entitled to be treated with courtesy and consideration at all times by your lawyer and the other lawyers and personnel in your lawyer's office.

2. You are entitled to an attorney capable of handling your legal matter competently and diligently, in accordance with the highest standards of the profession. If you are not satisfied with how your matter is being handled, you have the right to withdraw from the attorney-client relationship at any time (court approval may be required in some matters and your attorney may have a claim against you for the value of services rendered to you up to the point of discharge).

3. You are entitled to your lawyer's independent professional judgment and undivided loyalty uncompromised by conflicts of interest.

4. You are entitled to be charged a reasonable fee and to have your lawyer explain at the outset how the fee will be computed and the manner and frequency of billing. You are entitled to request and receive a written itemized bill from your attorney at reasonable intervals. You may refuse to enter into any fee arrangement that you find unsatisfactory.

5. You are entitled to have your questions and concerns addressed in a prompt manner and to have your telephone calls returned promptly.

6. You are entitled to be kept informed as to the status of your matter and to request and receive copies of papers. You are entitled to sufficient information to allow you to participate meaningfully in the development of your matter.

7. You are entitled to have your legitimate objectives respected by your attorney, including whether or not to settle your matter (court approval of a settlement is required in some matters).

8. You have the right to privacy in your dealings with your lawyer and to have your secrets and confidences preserved to the extent permitted by law.

9. You are entitled to have your attorney conduct himself or herself ethically in accordance with the Code of Professional Responsibility.

10. You may not be refused representation on the basis of race, creed, color, religion, sex, sexual orientation, age, national origin or disability.

PROTESTING PROPERTY ASSESSMENTS IN NASSAU COUNTY

Recently, the Long Island newspaper Newsday had an article about how Nassau County's new assessor suggested in an internal email that residential tax protest firms may be committing fraud through misleading solicitations. These firms charge a fee, usually 50% of your tax saving, if successful, plus costs. Without commenting on them, Nassau County residential landowners should know that they can protest their tax assessment themselves without the help of a tax protest firm or lawyer. The Nassau County Assessment Review Commission ("ARC") website at http://www.nassaucountyny.gov/agencies/ARC/index.html is both informative and useful. The ARC is an independent agency, separate from the Nassau County Department of Assessment and is responsible for annually reviewing all applications for correction of assessment filed in Nassau County. They encourage you to look at their website which has up-to-date and accurate information on taxes, assessments and filing appeals and is the only administrative review commission in New York State that enables you to file an appeal directly through a website. Their on-line appeal system is called AROW – Assessment Review On the Web. Through AROW, you can do an automated search of recent sales in your area to determine if your home is overvalued. This sales search feature is available to you year round, 24 hours a day, seven days a week. If, after your search of recent sales, you find the value of your property is excessive, they encourage you to file an application for correction of assessment. The next opportunity to file an appeal will be after the Department of Assessment sets its next tentative assessment roll on January 2, 2010. Your time to file an appeal based on that tentative assessment is between January 2, 2010 - March 1, 2010.

ESTATE PLANNING CONSIDERATIONS

Recently, I had a will execution. The estate was not large, the testator was a young person, but let us discuss what documents, when estate tax and medicaid/medicare/SSI/SSD issues are not involved, which should be part of an individual's estate plan:

1. Will
2. A Power of Attorney (NOTE: the rules change on the proper form on 9/1/09)
3. Health Care Proxy and/or Living Will
4. Medical Orders for Life-Sustaining Treatment (MOLST) Program
5. Do Not Resuscitate Orders
6. Standby Guardian Designation (if you have minor children)
7. Life Insurance Designations
8. Trusts
9. Property Transfers To Avoid Probate

Now each item mentioned is complex, there are many variations, etc. to each one - and, of course, always consult a lawyer. Many of these will be discussed later.

WHAT IF THE DEPARTMENT OF LABOR SAYS THEY WANT TO GET BACK BENEFITS PAID TO ME

This is from the New York Department of Labor website and I bring this up as this issue recently came to me: "If it has been determined that you have been overpaid benefits, you will receive a written Notice of Determination explaining the reason for the overpayment and how to request a hearing if you disagree.If you think you were paid benefits in error, it is important to notify the Telephone Claims Center. If you are entitled to further benefits, you may be able to use those benefits to repay the overpayment. Check with the Telephone Claims Center for instructions. Failure to repay an overpayment may result in additional charges for interest. In addition, arrangements have been made with other state agencies that enable the Department to intercept payments due you to repay amounts owed to the Department. A forfeit penalty, called Willful Misrepresentation, may be imposed. Cases of fraud are considered misdemeanors or felonies and may be prosecuted." In this situation, I advise that you retain counsel. You can get a list of attorneys and others who handles theses cases from State of New York Unemployment Insurance, Appeal Board, Executive Suite, 9 Bond St., Brooklyn, NY 11201

FOR LAWYERS IN NASSAU COUNTY

The current recession has hit us. Many lawyers and legal professionals were laid off in the past year; small firms and sole practitioners have seen a dramatic slowing of business; new law school graduates are still looking for work. What can lawyers who are in between jobs do to increase their chances of finding work? What can lawyers who are out of work do to stay in touch with colleagues and stay on top of developments in the law? How can lawyers who still have a job, but who fear an impending layoff or who are seeking a new situation, best put themselves into the marketplace? May I recommend, from an American Bar Association podcast I listened to yesterday, that you check out The Creative Lawyer website http://www.thecreativelawyer.typepad.com/

CAUTION FROM THE NASSAU COUNTY CLERK

Yesterday, I received a form letter from Nassau County Clerk Maureen O’Connell cautioning homeowners about mass mailings recently sent to residents from the "US Government Federal Citizen Information Center" or such other names. I have received one myself. These mass mailings urge homeowners to purchase a “certified copy” of the deed to their home. All deeds for property located in Nassau County are recorded and maintained at the County Clerk’s Office and only the Clerk’s Office can issue certified copies of these records. It appears that private companies are soliciting the purchase of a deed on behalf of the homeowner for more than 1000% over the Clerk’s office fees. Anyone wishing to request a certified copy of their deed can contact Clerk O’Connell’s office at 516-571-2664 for further information. And this is from the Nassau County Clerk's website:
"How do I obtain a copy of my Mortgage or Deed? The fastest way to obtain this information is to come to this office. We are located at 240 Old Country Road, Mineola. Computer terminals are located within our office and are available to the public during normal business hours to research mortgages, deeds and other documents affecting real property within Nassau County. Knowing your section, block, and lot will be helpful when researching a property. If you are unable to come in person, title companies can do the research for you. For a referral to a reputable title company, you can contact the New York State Land Title Association at 212-964-3701. Please provide us with as much information as possible. If you know the section, block and lot the charge is $1.30 for a document up to 2-pages; $.65 per page for every page thereafter. If you require us to do a search for that information, the charge is $7.00, for up to a 4-page document, plus $1.00 per additional page. "

A WORD OF CAUTION ON THE MORTGAGE MODIFICATION COMPANIES

At the heart of the President Barack Obama's ambitious plan to rescue the housing market is the conviction that restructuring distressed mortgages will keep struggling borrowers in their homes and help insert a floor beneath plummeting property values. Whether you call it a loan modification, mortgage modification, restructuring, or workout plan, it’s when a borrower — who is facing great financial hardship and is having difficulty making their mortgage payments — works with their lender to change the terms of their mortgage loan. The workout plan could result in temporary or permanent changes to the mortgage rate, term and/or monthly payment of the loan as the plan’s goal is to help the borrower reduce their monthly mortgage payments. One word of caution: this new bill has spawned a whole new wave of loan modification salespeople who might be perfectly fine and those who are not. Be careful. Also, it’s always good to hire legal counsel. Get a referral from your local bar association. Because when dealing with anyone who specializes in this field, it may be best to deal with someone who is local in the event any problems arise - it is easier to speak to someone who has an office a mile away from you than someone who has an office at the other end of the country.

CHILD SUPPORT IN NEW YORK

Here is something that I learned yesterday in a different type of litigation - in which someone was trying evict an individual under the age of 21. One would usually expect that a parent's obligation to support ends at 18, the year a child can drive, vote, etc. However, a parents liability for the support of his or her children continues for children under the age of 21 years. Of course, in the absence of an express or implied contract, parents have no duty to support an adult child. For custody, visitation and other purposes, the age of majority is age 18, but for purposes of the parental support obligation, the age of majority remains at 21. The mutual parental duty of child support is not absolute. It may be suspended or terminated before the child is 21 if the child becomes emancipated by becoming economically independent of his/her parents through employment, by marriage or entry into the military service. Under unusual circumstances, a child may be deemed emancipated if he/she is guilty of outrageous misbehavior, such as behavior which makes it inequitable to enforce the support obligation, or if without cause, he/she withdraws from parental control and supervision. So in New York, child support generally ends at age 21, unless there is an agreement to terminate it at an older age. See DRL 240 and FCA 413.

A SMALL BUSINESS CLAIM

Recently, a small business in New York asked me what can be done about a customer who was located out of state, did not do business in New York State, had no assets in New York State and entered into an agreement with the New York State client which provided that the New York State client would provide services for the customer out of state. Naturally, what happened was that the client performed the services out of state for the customer but the customer failed to pay the client. This is a common problem - the client can try and sue the customer in New York State but the customer may claim it is not subject to the jurisdiction of New York State. And even assuming that a judgment could be obtained against the customer, by default or otherwise, unless the out of state client agrees to pay the judgment immediately, the judgment would have to be sent to an out of state attorney to have the judgment enforced in the state where the customer had assets. There are some possible solutions to this problem, including a valid consent to New York jurisdiction clause in every contract with out of state customers, down payments, amounts held in escrow, bonds, etc., but let me relate one story about the problems with enforcing claims by a New York State small business with an out of state customer. I once received in federal court, after 2 years of litigation and a jury trial, a judgment for a New York State client against a small business in a neighboring state. It then took another year, with appeals, etc. to get the judgment finalized. But then, the biggest problem was enforcing the judgment as the out of state small business refused to pay the judgment and attempted to withhold all information about the location of its assets. After a year, I hired a private detective to go through the garbage of the small business to locate it's bank accounts. Finally, we were able to enforce the judgment and collect the monies due. This took 4 years: the amount of legal fees incurred equaled the amount of the monies collected so I agreed to cut my fee in half. But don't be fooled - getting a judgment may be easy, enforcing it can be hard!

THE WHOLE TRUTH AND NOTHING BUT

If you went to the doctor because of a pain on your right side, would you tell the doctor that the pain was emanating from your left side? Of course not, but there are times when a client will not tell their lawyer everything. This can be extremely detrimental to your case: recently, a client withheld some information which was very damaging to their claim and, because this was a type of litigation that did not permit discovery, the damaging evidence was introduced by the other side at the trial and I had to seek an adjournment in order to prepare a defense to the damaging evidence, evidence which my client knew of but decided to not tell me of its existence. So the question is: do you tell your attorney everything? Should you? On April 1, 2009 New York replaced all of the existing Disciplinary Rules and Definitions in the New York Code of Professional Responsibility with the New York Rules of Professional Conduct. Under DR 7-102(B)(1) of the old Code of Professional Responsibility, if a lawyer learns ("receives information clearly establishing") after the fact that a client has lied to a tribunal, then the lawyer "shall reveal the fraud" to the tribunal, "except when the information is protected as a confidence or secret" -- which it nearly always is, was or will be because disclosing that a client has committed perjury is embarrassing and detrimental to the client. Thus, the exception swallowed the rule, and confidentiality trumped candor to the court in the old Code. In contrast, new Rule 3.3(a) provides that if a lawyer or the lawyer's client has offered evidence to a tribunal and the lawyer later learns ("comes to know") that the evidence is false, the lawyer "shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal." New Rule 3.3(c) makes crystal clear that the disclosure duty applies "even if" the information that the lawyer discloses is protected by the confidentiality rule (Rule 1.6). This is a major change from the old DR 7-102(B)(1) and a real change in the operation of the attorney/client privilege.

JUDGES IN NEW YORK

If you feel your case is before a difficut judge, bear this in mind: the state's 1,300 judges have not received a pay increase to reflect changes in the cost of living since 1998, when the last judicial raise was enacted. And with Albany officials unwilling to grant raises in the midst of a recession, recent litigation over the question apparently is headed for a final showdown at the New York State Court of Appeals. The pay of Supreme Court justices is over $30,000 less than the pay earned annually by federal district court judges and state judicial salaries have lost between one-quarter and one-third of their value since 1998, In fact, compensation for New York legal professionals rose dramatically, with the anomalous result that salaries of young, newly minted lawyers often exceeded those of the experienced jurists before whom they appear.

ISSUES WITH UNEMPLOYMENT INSURANCE BENEFITS

In this economy, there are many people who are being laid off. Many of you are hoping to receive unemployment insurance benefits to carry you through the difficult period of being in between jobs. But the cost of unemployment insurance is partially borne by your employer and, it has been my experience, that in order to cut costs, many employers are attempting to disqualify laid off employees from unemployment insurance benefits on the ground that the employee was terminated for misconduct. You do have the right to have a hearing on this issue but many should be aware of the law. Under Section 593.3 of the New York Labor Law, if a claimant lost employment prior to the filing of his claim through misconduct in connection with his employment, he is disqualified from benefits beginning with such loss of employment and ending when he has worked in subsequent employment and earned remuneration at least equal to five times his weekly benefit rate. In addition, any wages earned in employment which ended due to misconduct in connection with that employment cannot be used to establish a valid original claim for benefits. The term "misconduct" is not defined in the statute. However, the New York State Court of Appeals in Matter of James (34 NY 2d 491) has indicated that "misconduct" is any volitional act or omission which is detrimental to an employer's interests. Subsequent Unemployment Insurance Appeal Board decisions have indicated that "misconduct" may include acts or omissions off the job as well as on the job if an adverse effect on the employer is demonstrated. Notwithstanding the broad concept of misconduct now applied, there remain circumstances which would not justify the imposition of a disqualification for misconduct, including: mere inefficiency, inadequate performance as the result of inability or incapacity, inadvertence or ordinary negligence in isolated instances, good faith errors in judgment or discretion, etc. On the other hand, even inadequate performance may be misconduct if it can be shown that it resulted from gross negligence, indifference, or recurrent carelessness. There are also other grounds for disqualification of benefits: for example, you will generally not be entitled to benefits if it was determined that you voluntarily terminated your employment without cause. When faced with a denial of benefits, you should contact an attorney (non attorneys who undergo a certain course can also represent you before the Administrative Law Judge hearing) and names of attorneys and others who specialize in this can be obtained from State of New York. Unemployment Insurance Appeal Board, Executive Suite, 9 Bond St., Brooklyn, NY 11201, Tel. (718) 613-3505, Fax (718) 613-3507. Sometimes, these cases are handled on a pro bono basis and I have done several pro bono. But you should also be aware that presently, there is a huge backlog of cases and, in one matter I handled, due to the complexity of issues, multiple hearings were required. The process may sometimes take a considerable amount of time until a final determination is made.

CUSTODY ISSUES

What if you are the parent with sole custody of your child? What if the other parent is, in fact, completely unfit to be a parent due to drugs, alcohol, mental health issues, incarceration, etc.? What happens if, excuse the morbidity, you die or become completely incapacitated? Remember - an award of sole custody does not mean the other parent's parental rights have been terminated. Custody of the child may go to the other parent or other relatives of you and/or the other parent may fight over custody and visitation. Well nothing can prevent someone from starting a litigation but one thing you can do is express your wishes in a will and a Standby Guardian Designation. Standby Guardianship is another alternative for transferring the custody and the care of children to another person. Standby Guardianship allows the custodial parent to make future plans for his or her children without having to legally transfer decision-making power. I usually recommend both a will and a Standby Guardian Designation but here is a discussion of the Standby Guardian Designation Law in New York State (Surrogates Procedure Act Section 1726):
I. Designation of Standby Guardian. New York's standby guardianship law is developed for parents who are fatally ill or progressively, chronically ill, and who want to plan for their children's future. There are two ways that a standby guardianship may be formed: by petition, prior to a triggering event; or by designation at any time, ideally to be followed by petition even after a triggering event. A particular person may be nominated as standby guardian under either method. The early-petition strategy requires the parent to declare that she has a "progressively chronic illness" or an "irreversibly fatal illness. She must state the basis for this, although she does not have to file a physician's statement. [Surrogate 1726.3(b)(ii)] The petition must list any or all of four triggering events: mental incapacity, physical debilitation plus consent, consent alone and death. [Surrogate 1726.3(b)(i) and (d)(ii) and (e)(iii)]
The designation strategy, on the other hand, is a step toward guardianship, with formalization through the court occurring at some later point. The parent prepares a document that lists two triggering events: mental incapacity and physical debilitation plus consent. An optional designation form is provided in the statute. By contrast with the early-petition process, the statute does not require death to be listed as a triggering event, although legal practitioners' designation forms in New York City do so list it. The law permits the designation to go forward if the parent dies after the designation is created but before the petition is filed. [Surrogate 1726 4.(b)] In practical terms, the major difference between the two strategies is that the early-petition process allows a parent to resolve all issues relating to future care of her child in court, before she becomes severely incapacitated. The designation process allows the plans to develop privately, and shifts the administrative burden to the standby guardian. The parent retains "full parental rights" after the guardianship begins. [Surrogate 1726.4(b)(iii)] This amounts to concurrent authority shared by the parent and the standby guardian. [Surrogate 1726.7] In practical terms the parent has primary authority unless she is unable to exercise it. The parent may revoke the designation either orally, in writing, or in any other way that indicates intent. [Surrogate 1726.4(f)] (Practitioners forms used in New York City state that a revocation is to be in writing.] The designation is filed in court together with a petition requesting appointment of the standby guardian.
II. Agreement of the Non-Custodial Parent. The standby guardianship law is silent as to the involvement of the non-custodial parent. He is not required to sign the designation. The legal provisions applicable to general guardianships require notice to be given to parents if they are in the state and their residences are known. Moreover it says that "No process shall be necessary to a parent who has abandoned the infant or is deprived of civil rights or divorced from the parent having legal custody of the infant or an incompetent who is otherwise judicially deprived of the custody of the infant…." [Surrogate 1705.1(a) and .2] At a minimum, there must be notice to the parent, or an affidavit describing why no notice is necessary, or consent of the parent. (Attorneys state that in Family Court, where standby guardian cases usually are heard, judges typically would require notice to an out-of-state parent if the residence is known.)
III. Role of the Standby Guardian. A standby guardian's authority does not begin until one of the triggering events listed in the petition or designation document occurs. Upon the occurrence, the standby guardian must gather the required evidence. Evidence would be a physician's determination of incapacity or debilitation, a parent's written, attested consent, a death certificate or funeral home receipt. Under the early-petition strategy the standby guardian has 90 days to gather the evidence and file it in court to activate the guardianship. [Surrogate 1726.3(e)] Under the designation strategy, the standby guardian has 60 days to do this, and the evidence must be accompanied by a petition for appointment. [Surrogate 1726.4 ( c)] If the documents are not filed within 60 days, the guardian's temporary authority lapses. If lapsed, a later filing can occur, and usually the request for renewed authority is granted. [Surrogate 1726.4(c)] The standby guardian's authority is concurrent with the parent's, and may include parental kinds of decisions relating to the personal welfare of the child, unless Surrogate's Court has also granted authority over the child's property. [Surrogate 1726.7] Once the guardianship becomes permanent, unless it is revoked or rescinded, it lasts until the child's majority or until another intervening event like the child's marriage. [Surrogate 1707.2]
IV. Court Process. Court process for a standby guardianship can commence either with filing a petition for appointment prior to a triggering event; or with filing a designation document along with a petition for appointment after the triggering event occurs. The law states that the filing is for "the sole purpose of safekeeping and shall not affect the validity of the appointment or designation." [Surrogate 1726.8(a)] In other words, the guardianship is not effective until the court makes a finding based on declarations in the designating document and the petition. The court must ascertain whether the guardianship will promote the child's best interests. [Surrogate 1726.3.(d)(I). See also Matter of Guardianship of Rene O.C.606 NYS 2d 872 (1993)] To do that, a court hearing is implied, even if the petition is uncontested. [Matter of Guardianship of F.H., 632 NYS 2d 777 (1995)] Notice is given to any parent living in the state in a known residence, unless the parent is adjudicated unfit, incompetent, etc. Notice must also be given to children named in the petition who are 14 years or older. [Surrogate 1705] A parent's presence in court can be waived, if she is too ill to appear. [Surrogate 1726.3 ( c)]
Under the early-petition strategy, once the court has made a decision, the matter lies dormant until one of the specified triggering events occurs. The standby guardian then files confirming documents within 90 days of the event, along with a petition for appointment as guardian. [Surrogate 1726.3(e)] Under the designation strategy, the documents are filed within 60 days of the triggering event, along with a petition for appointment. [Surrogate 1726.4( c)] The court then examines whether the facts are as stated and the child's interests will be promoted. [Surrogate 1726.4(e)] Note that this process can take place either in Family Court under the Family Court Act, Title 6, or in Surrogate Court under the Surrogate's Act, Title 17.
Overall, the New York Court retains a great deal of flexibility and discretion.
See McKinney's Consolidated Laws of New York Annotated Surrogate's Court Procedure Act, Chapter 59-A of the Consolidated Laws, Article 17 – Guardians and Custodians, Section 1705, 1707, 1726.

LANDLORD/TENANT MATTERS IN NASSAU COUNTY

At least once to twice a month, I am in Landlord/Tenant Housing Court in Nassau County representing tenants. One of the many issues I am faced with, which makes Nassau County much different than New York City, is that most of the leases are not rent stabilized/rent controlled or have other statutory protection. Many of them are just one year (I've seen some two year) leases or oral leases (oral leases in New York are also known as a month to month tenancy). That means at the end of the term of the written lease, the landlord (or you) is not obligated to renew for any reason or, if you wish to remain, the landlord may ask for a high increase. If an oral lease, the landlord (and you) may at any time (upon 30 days notice) seek to terminate the lease for any reason or, if you wish to remain, the landlord may ask for a high increase. Thus, if you are from New York City and move to Nassau County and do not enter into a lease for an apartment subject to rent regulation, you may be faced with the above issues, specifically, no right of renewal and no statutory fixed rent increases (or rarely decreases) but rents fixed at the discretion of the landlord. And note: in this economy, landlords want good tenants so if you have always paid on time, at the end of your lease, or upon 30 days notice if an oral lease, maybe you can ask your landlord for a reasonable rent decrease or other concession - but if the landlord says "No", you must be willing to remain on the landlord's terms or move to new premises. In a later blog, I will discuss other issues that arise when you rent in Nassau County.