*Two Federal Court Removal Points

Posted on January 20, 2011 | Leave a comment

An attorney recently consulted with me concerning a removal issue. i.e. What could be done to have his case remanded to state court. After reviewing the case, I concluded that there was nothing that could be done, short of saying that the demand in the case was less than $75,000. I did note however, that because of the date of filing of the petition for removal (it should have been a notice of removal as petitions are no longer needed) by the corporate defendant, there was something that could have been done to prevent the removal in the first place.

CPLR §3017(c) provides in part that:

“…In an action to recover damages for personal injuries or wrongful death, the complaint, … shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled. If the action is brought in the Supreme Court, the pleading shall also state whether or not the amount of damages sought exceeds the jurisdictional limits of all lower courts, which would otherwise have jurisdiction. …”

When this statute became effective, it had the unintended effect of extending, in many if not most instances, the time within which defendants are required to file a notice of removal with the Federal Court, as the language suggested by the statute does not put the defendant on notice that the action seeks damages sufficient to meet the statutory minimum of $75,000 for Federal Court diversity jurisdiction. This discussion assumes proper diversity and no in-state defendant.

28 U.S.C. § 1446(b) provides in part that:

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a … paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 [diversity] of this title more than 1 year after commencement of the action.

Thus in most cases were there has been compliance with CPLR §3017(c), the time to remove won’t begin to run until the defendant’s attorney receives “a supplemental demand setting forth the total damages to which the pleader deems himself entitled,” (which a defendant is entitled to request under CPLR §3017(c).)

I therefore propose that plaintiffs, who wish to impede removal, set forth in their complaint that “damages sought exceed the jurisdictional limits of all lower courts and exceed the minimum necessary for diversity jurisdiction in all federal district courts which would otherwise have jurisdiction” This should start the time within which defendant has to remove, when received by defendant and thus require remand when the defendant does not file within 30 days of receipt of such a complaint.

It should be noted that any written or oral demand for settlement of $75,000 or more, that reaches the defendant or the defendant’s attorney after service of the complaint, can satisfied the requirement of letting the defendant know that the action meets the statutory limit for removal.

In the case I was consulted on, the defendant would not have filed timely if the demand was as I have suggested.

28 U.S.C. § 1446(b) provides in part that:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, …

When does receipt occurred, when not personally served upon the defendant? In the case of corporations, service is most often made upon statutory agents and designated agents. The former does not start the 30-day period for removal but the latter does.

In Recyclers Consulting Group v. IBM-Japan, Ltd., 1997 U.S. Dist. LEXIS 15356 (S.D.N.Y. Oct. 3, 1997) The Court concludes that “proper service of the summons and complaint on Defendant’s designee for service, …, triggered the 30-day removal limitations period”

In Cygielman v. Cunard Line Ltd., 890 F. Supp. 305 (S.D.N.Y. 1995) at 307 the court said that “[t]he heavy weight of authority is to the effect that the time for removal, in cases in which service is made on a statutory agent, runs from receipt of the pleading by the defendant rather than the statutory agent … . This makes abundant sense, as the defendant’s right to a federal forum ought not to depend upon the rapidity and accuracy with which statutory agents inform their principals of the commencement of litigation against them.”

And in the case I was consulted on, the designated agent was served, but the filing of removal papers was done based upon the assumption that receipt occurred when the papers were received by the defendant from their designated agent.

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*Free CLE Credit – FRE Rule 502 Attorney-Client Privilege and Work Product; Limitations on Waiver

Posted on October 6, 2010 | 2 comments

See an e-mail received today with an offer of free CLE credit in NY

The National Law Journal and Fordham Law School cordially invite you to
a complimentary Webinar with free CLE credit in NY, TX, IL, and CA.

Waiving Attorney-Client Privilege: Understanding Rule 502
November 2, 2010 | 1 PM EDT | REGISTER NOW

Speakers: Moderator:

Daniel J. Capra
Philip D. Reed Chair,
Fordham Law School

Judge Lee H. Rosenthal
U.S. District Judge, Southern District of Texas, and Chair, Judicial Conference
Standing Committee on Rules of Practice and Procedure

Kenneth A. Gary, JD
Associate Publisher,
The National Law Journal

Federal Rule of Evidence 502, signed into law in September 2008, provides protections to parties with privileged information who unintentionally disclose privileged material. Tied, in part, to issues that arise during electronic discovery, the measure seeks to reduce litigation costs typically arising in the process of privilege review and production. The rule establishes a presumption against subject matter waiver, resolves the issue of inadvertent disclosure, provides for confidentiality orders and supports party agreements, among other issues.

Please join Professor Capra, principal author of Rule 502, and Jude Rosenthal, who shepherded it through Congress, for a discussion of these standards for waiver of attorney-client privilege.

Visit www.law.com/fordham to register today.

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Posted in CLE, Evidence, Federal Court

*Changes to the USDC EDNY Arbitration Procedure: You Select the Arbitrator and Schedule the Session.

Posted on September 29, 2010 | Leave a comment

*Effective November 1, 2010, Counsel in cases designated for arbitration in the USDC EDNY will select the arbitrator and schedule the arbitration session, rather than the Arbitration Clerk, who previously performed these steps.

After a case is selected for arbitration, the Arbitration Clerk will send the following instructions to counsel via ECF:

“Within fourteen (14) days of the “Notice of Designating Case for Court Annexed Arbitration,” Counsel are to select an Arbitrator, schedule the arbitration session with the Arbitrator, and electronically file (via ECF) a “Proposed Order Appointing an Arbitrator.” The date selected shall not be later than 120 days from the date the answer was filed and, in the absence of the consent of the parties, shall not commence until 30 days after the disposition by the district court of any motion to dismiss the complaint, motion for judgment on the pleadings, motion to join necessary parties, or motion for summary judgment, if the motion was filed during a time period specified by the district court. The Arbitrator is authorized to change the time and date of the hearing provided it is within 30 days of the hearing date set forth in the proposed order. Continuances beyond this 30 day period must be approved by the Court. For a list of the EDNY Arbitrators and their qualifications, see the EDNY’s website at:

http://www.nyed.uscourts.gov/adr/Arbitration/arbitration.html.

In accordance with Administrative Order 2004-08 (effective August 2, 2004) electronic filing became mandatory in the Eastern District of New York for all cases (pro se cases are excluded).”

Once approval is granted, pursuant to Local Rule 83.10(e)(6) the Arbitration Clerk will send Counsel the guidelines for arbitrators and the arbitration award via ECF. The Arbitration Clerk will also send PACER account information to the Arbitrator so that he or she will have access to the docket sheet and pleadings.

If anyone has questions, concerns, or comments about the upcoming changes, feel free to contact the USDC EDNY ADR Department at 718-613-2577.

Brooklyn ADR Office
U.S. District Court
Eastern District Court of New York
225 Cadman Plaza East, Room 215 South
Brooklyn, New York 11201

Central Islip ADR Office
U.S. District Court
Eastern District of New York
100 Federal Plaza
Central Islip, New York, 11722-4438

Brooklyn Arbitration Clerk
Rita Credle
Telephone: (718) 613-2325
Facsimile:(718) 613-2399
Email: rita_credle@nyed.uscourts.gov

Central Islip Arbitration Clerk
Jean Bollbach
Telephone: (631) 712-6047
Facsimile: (631) 712-6028
Email: Jean bollbach@nyed.uscourts.gov

USDC EDNY ADR Administrator
Gerald P. Lepp, Esq.
Telephone: (718) 613-2577
Facsimile:(718) 613-2368
Email: Gerald_P_Lepp@nyed.uscourts.gov

*From an e-mail recently received from USDC EDNY ADR Administrator, Gerald P. Lepp, Esq.

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Posted in Court Annexed Arbitration, Federal Court, USDC EDNY

*Prior License Suspension Admissible, (Sometimes,) to Prove Gross Negligence.

Posted on May 19, 2010 | Leave a comment

On April 1, 2010, in a unanimous decision, People v Caban, 2010 NY Slip Op 02674, the Court of Appeals, reversed the Appellate Division, (People v Caban, 51 AD3d 455 (1st Dept 2008)) and found it proper to admit into evidence, a criminal defendant’s prior license suspension, arising from an incident with some similarities to the accident at issue, and in effect at the time of the accident at issue, to prove a charge of criminal negligence.

Criminal negligence is defined by the Penal Law § 15.05 (4):

“A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

And it has been said that “criminal negligence, … is only another name for gross negligence when it causes death or injury to life or limb” Perkins v. New York C. R. Co., 24 N.Y. 196, 205 (N.Y. 1862.) And when the evidence plainly shows … gross negligence in reckless disregard of another’s rights, punitive damages are justified. Fittipaldi v. Legassie, 18 A.D.2d 331, 335 (N.Y. App. Div. 4th Dep’t 1963.) But it should be kept in mind that some courts have held that “even where there is gross negligence, punitive damages are awarded only in “singularly rare cases” such as cases involving an improper state of mind or malice or cases involving wrongdoing to the public,” Karen S. v. Streitferdt, 172 A.D.2d 440 (1st Dep’t 1991)

The Caban Court had this to say about the introduction of the fact of the prior suspension:

“Thus the jury in this case had to consider not only whether defendant failed to perceive ‘a substantial and unjustifiable risk’ that her careless driving would kill someone, but also whether that failure was ‘a gross deviation from the standard of care that a reasonable person would observe in the situation.’ … The license suspension was relevant to this question, because a jury could find that it proved defendant to be more negligent than the other evidence showed her to be.

A jury could find that it is unreasonable to back up quickly into a crosswalk, without checking carefully to be sure that no one is in the way; but that it is even more unreasonable to do so when the state has forbidden the driver from driving at all. A jury could find that the license suspension should, if it did not keep defendant off the road, at least have prompted her to pay more attention to safety while she was driving, and that in failing to do so she deviated grossly from what a reasonable person would have done.

While a license suspension is, as a general proposition, relevant to the issue of criminal negligence, that does not mean evidence of a suspension is admissible whenever criminal negligence is in issue. Evidence, though relevant, may be excluded where “its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury” (People v Scarola, 71 NY2d 769, 777 [1988]). That danger is not present here. Defendant would have a better argument for exclusion if her license had been suspended, for example, for failure to pay parking tickets. But it was not. It was suspended for conduct frighteningly similar to the conduct that caused Francesca Maytin’s death — backing unsafely into a crosswalk. If the jury inferred from the license suspension that defendant should have known that it was unsafe for her to drive, the jury was not misled.

… When the issue is criminal negligence, a prior similar act for which defendant has been punished shows more than propensity; a defendant who is repeatedly negligent in the same way may be found to be unable or unwilling to learn from her mistakes — and thus to be guilty not just of deviation, but of ‘gross deviation,’ from reasonable care. The prior conduct is thus directly relevant to the extent of defendant’s negligence in the case on trial — to her mens rea.

The trial court did not err by allowing the fact of defendant’s license suspension into evidence.”

It is interesting to note that while the Court repeatedly speaks of the suspension having been for similar conduct, the jury did not know this, as only the fact of the suspension was admitted into evidence, not the reason why.

And when the Court spoke of how the jury might have viewed the suspension, they noted that the jury could made the finding of gross deviation solely upon the basis of the suspension, i.e. “A jury could find that it is unreasonable to back up quickly into a crosswalk, without checking carefully to be sure that no one is in the way; but that it is even more unreasonable to do so when the state has forbidden the driver from driving at all.

Also when the Court spoke of a suspension that should not be introduced into evidence, they did not speak of a non-similar moving violation, but a suspension for a non-driving reason, i.e. not paying parking tickets. So an outstanding question is, would a suspension for speeding have been admitted in this improper backing up case? I think not, for the purpose of the lack of the reason for the suspension going to the jury, was to avoid the clear prejudice that would arise, if the jury knew that the defendant had committed the same improper act before.

What I think is clear, however, is that if you have a civil case, where the operator, defendant, was driving with a suspended license, suspended for a moving violation, similar to the negligent act claimed in your case, you can claim gross negligence, seek punitive damages and introduce the fact of the prior suspension.

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Posted in Tort - Automobile Accident, Trial Practise - Evidence

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Bronx County Clerks Office is Online.

Posted on May 5, 2010 | 2 comments

Most documents on file with the Bronx County Clerks office can be found at their new Internet home. You can either register to go on-line or go on-line as a quest. If you have Adobe Reader, or Adobe Acrobat you can access and download the documents.

A tip of the cap to Jeff Richman for bringing this to my attention.

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Posted in Courts Online., Links

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Duties And Obligations of a Lawyer Upon Learning After The Fact, That a Client Has Lied About a Material Issue at an Arbitration.

Posted on April 20, 2010 | Leave a comment

I have recently learned that the The New York State Bar Association has issued an opinion similar to a NYCLA opinion which I discussed recently. In Ethics Opinion 837, issued March 16, 2010, with the topic heading of Confronting false evidence and false testimony, the New York State Bar Association Committee On Professional Ethics was confronted with this scenario: A client gave sworn testimony at an arbitration proceeding concerning a document. The document was admitted into evidence based upon the testimony. The client also testified concerning the client’s actions in preparing the document and submitting the document to the client’s employer. In a later conversation between client and counsel, the client informed counsel that the document was forged. Counsel thereby came to know that the document and some of the client’s testimony concerning the document were false.

What to do? The Conclusion the committee came to under the new rules was that “Rule 3.3 [set forth below – LJS] requires an attorney to take reasonable remedial measures even if doing so would entail the disclosure to a tribunal of client confidential information otherwise protected by Rule 1.6. [set forth below – LJS] However, if reasonable remedial measures less harmful to the client than disclosure are available, then disclosure to the tribunal is not “necessary” to remedy the falsehood and the attorney must use measures short of disclosure”

They also gave guidance by approving the solution of informing “the tribunal that the specific item of evidence and the related testimony are being withdrawn, but … not expressly make any statement regarding the truth or falsity of the withdrawn items.” They then reminded us that “before acting unilaterally, [counsel] should bring the issue of false evidence to the client’s attention, and seek the client’s cooperation in taking remedial action.”

In the digest to the opinion it said that “Rule 3.3 of the New York Rules of Professional Conduct requires an attorney to disclose client confidential information to a tribunal if discloser is necessary to remedy false evidence or testimony. The exception in former DR 7-102(B)(1) exempting discloser of information protected as a client “confidence or secret” no longer exists.”

Thus I ask myself, does an attorney have an obligation to a client to advise them of this change in the rules? I do this because most if not all clients will assume that anything that is said to an attorney will be kept confidential. As many attorneys will err on the side of caution, I think that it would be best to let the client know that if I learn that you have lied at a deposition, trial, arbitration or in providing discovery and it is important (another word for material) I will have to let the Court/Arbitrator know about it one way or another and with or without your help. But if I can do so without specifically telling the Court/Arbitrator that you lied and what the truth is, I will try to do that. Any thoughts on this task will be appreciated.

RULE 3.3: Conduct Before a Tribunal

(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer or use evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client before a tribunal and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reason- able remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) apply even if compliance requires disclosure of in formation otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
(e) In presenting a matter to a tribunal, a lawyer shall disclose, unless privileged or irrelevant, the identities of the clients the lawyer represents and of the persons who employed the lawyer.
(f) In appearing as a lawyer before a tribunal, a lawyer shall not:
(1) fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of the intent not to comply;
(2) engage in undignified or discourteous conduct;
(3) intentionally or habitually violate any established rule of procedure or of evidence; or
(4) engage in conduct intended to disrupt the tribunal.

RULE 1.6: Confidentiality of Information

(a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such in- formation to the disadvantage of a client or for the advantage of the lawyer or a third person, unless:
(1) the client gives informed consent, as defined in Rule 1.0(j);
(2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or
(3) the disclosure is permitted by paragraph (b).
“Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. “Confidential information” does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.
(b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime;
(3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be re- lied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;
(4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;
(5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; or (ii) to establish or collect a fee; or
(6) when permitted or required under these Rules or to comply with other law or court order.
(c) A lawyer shall exercise reasonable care to prevent the lawyer’s employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidential information of a client, except that a lawyer may reveal the information permitted to be disclosed by paragraph (b) through an employee.

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*New York Online Virtual Electronic Libary, “NOVELNY”

Posted on April 12, 2010 | Leave a comment

Access information 24/7 from your desktop by logging on to NOVELNY, the New York Online Virtual Electronic Library. A wide variety of resources are available free to New York State residents. There is access to the full text of hundreds of journals, newspapers, and other references. There are over 400 publications with “Law” in the title, such as the the Harvard Law Review, the Insurance Coverage Law Bulletin, and Medical Malpractice Law & Strategy. But most of these “Law” publications are Internet related. Note, however, not all resources are up to day, but it seems that most are. And they vary as to how far back they go in time.

If you have a public library card, New York driver license, or New York non-driver ID you can use NOVELNY. Access is also available to holders of a New York State Resident Borrower’s Card or a New York State Library Borrower’s Card.

Resources are available if you need assistance in using NOVELNY. There is a FAQ page, or you can call the Help Desk (available only Monday – Friday 9:00 am to 4:00 pm Toll-free (877) 277-0250, Capital District (518) 486-6012).

This link has been added to my list of links. And if you find it helpful, let me know.

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*Duties And Obligations of a Lawyer Upon Learning After The Fact, That a Client Has Lied About a Material Issue In a Civil Deposition.

Posted on April 7, 2010 | 1 comment

On April 1, 2009, the Rules of Professional Conduct replaced the New York Code of Professional Responsibility. Last month the New York Committee on Professional Ethics issued it first ruling based upon the new rules and abandoned an opinion of 14 year. And while ethics opinion are not binding on the Courts, it is, I believe, rare that they are ignored.

But note, here the opinion presupposes that the lawyer has actual knowledge of the falsity of the testimony and that actual knowledge may be inferred circumstantially.
—————————————-
NYCLA COMMITTEE ON PROFESSIONAL ETHICS FORMAL OPINION No. 741

Date Issued: March 1, 2010

Based upon RPC 3.3,1.6 (set forth below.)

QUESTION: What are a lawyer’s duties and obligations when the lawyer learns after the fact that the client has lied about a material issue in a civil deposition?

DIGEST ANSWER: A lawyer who comes to know after the fact that a client has lied about a material in a deposition in a civil case must take reasonable remedial measures, starting by counseling the client to correct the testimony. If remonstration with the client is ineffective, then the lawyer must take additional remedial measures, including, if necessary, disclosure to the tribunal. If the lawyer discloses the client’s false statement to the tribunal, the lawyer must seek to minimize the disclosure of confidential information. This opinion supersedes NYCLA Ethics Opinion 712.
—————————————-
Ethics Opinion 712, issued in March 1996, provided the following digest answer to a similar question:

DIGEST ANSWER: Where A Client Advises Lawyer That Prior Deposition Testimony Was False, Lawyer May Continue In The Representation Provided That The Lawyer Does Not Knowingly Use The Perjured Testimony Or False Evidence.

The Question in 712 however was more expansive:

QUESTION: The inquirer’s client is a defendant in a civil litigation. After the client provided deposition testimony to the plaintiff, the client advised the lawyer that certain of the testimony was untrue. The facts that are the subject of the false deposition testimony are material to the case so that no objection as to relevance will be available. The deposition transcript, which remains in the lawyer’s possession, has not been signed by the client. The client has rejected the lawyer’s advice to correct the transcript or otherwise rectify the fraud. Discovery has been completed and the case is now on the trial calendar. The inquirer has asked what action he mayor must take to withdraw from the representation and/or to notify the trial judge or opposing counsel of the false deposition testimony of his client.

RULE 3.3: Conduct Before a Tribunal

(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer or use evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client before a tribunal and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reason- able remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) apply even if compliance requires disclosure of in formation otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
(e) In presenting a matter to a tribunal, a lawyer shall disclose, unless privileged or irrelevant, the identities of the clients the lawyer represents and of the persons who employed the lawyer.
(f) In appearing as a lawyer before a tribunal, a lawyer shall not:
(1) fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of the intent not to comply;
(2) engage in undignified or discourteous conduct;
(3) intentionally or habitually violate any established rule of procedure or of evidence; or
(4) engage in conduct intended to disrupt the tribunal.

RULE 1.6: Confidentiality of Information

(a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such in- formation to the disadvantage of a client or for the advantage of the lawyer or a third person, unless:
(1) the client gives informed consent, as defined in Rule 1.0(j);
(2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or
(3) the disclosure is permitted by paragraph (b).
“Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. “Confidential information” does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.
(b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime;
(3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be re- lied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;
(4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;
(5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; or (ii) to establish or collect a fee; or
(6) when permitted or required under these Rules or to comply with other law or court order.
(c) A lawyer shall exercise reasonable care to prevent the lawyer’s employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidential information of a client, except that a lawyer may reveal the information permitted to be disclosed by paragraph (b) through an employee.

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Posted in Civil Procedure, Ethics

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*When to Make a Request For a Missing Witness Charge

Posted on April 2, 2010 | 2 comments

In a unanimous memorandum decision, the Court of Appeals on April 1, 2010 reaffirmed the timing requirement for a request for a missing witness charge. In People v Carr the Court said “A party seeking a missing witness instruction has the burden of making the request ‘as soon as practicable’ (People v Gonzalez, 68 NY2d 424, 428 [1986]). Whether such a request is timely is a question to be decided by the trial court in its discretion, taking into account both when the requesting party knew or should have known that a basis for a missing witness charge existed, and any prejudice that may have been suffered by the other party as a result of the delay.

Here, defendant knew at the outset of the trial that the People did not intend to call three of the victim’s relatives who were present at the time of the alleged crime. Supreme Court did not abuse its discretion in holding that defendant’s request for a missing witness charge, made more than a week after the People provided their witness list, and after the People had rested their case in chief, came too late.” (emphasis added)

The reasoning behind the “soon as practicable” requirement was explained in People v Gonzalez, supra., where the request by defendant was made at the charge conference, after the People had rested. There the Court said “[t]he burden, in the first instance, is upon the party seeking the charge to promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call him to testify. In some instances, this information may be available prior to trial; at other times, it may not become apparent until there has been testimony of a witness at trial. In all events, the issue must be raised as soon as practicable so that the court can appropriately exercise its discretion and the parties can tailor their trial strategy to avoid ‘substantial possibilities of surprise.’” (emphasis added.)

The “parties” referred to is clearly in the first instance is the party against whom the charge is sought and the trial strategy is the decision to call or not call a witness. Therefore, don’t wait for the charge conference to request the charge for the first time, but as soon as you realize that you may be entitled to a missing witness charge (People v Gonzalez, supra, sets forth the standard) let your adversary and the Court know that you are requesting it. And it would appear that you are entitled to a ruling by the Court on your request at the time you make the request or shortly thereafter.

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Posted in Trial Practice - Jury Charge

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*The Common Law Origins of the Infield Fly Rule

Posted on April 1, 2010 | Leave a comment

With the baseball season just around the corner (The New York Yankees take on the The Boston Red Sox at Fenway Park at 8:05 p.m. on April 4th) it is time to brush up on the rules of baseball, and the best place to start is a reading or rereading of The Common Law Origins of the Infield Fly Rule 123 Univ. Penn. Law Review 1474 (1975,) anonymously penned by William S. Stevens, who was then a law student at the University of Pennsylvania Law School. Unfortunately Mr. Stevens passed away at age 60, on December 8, 2008

The complete code of rules governing the playing of baseball games by professional teams of Major League Baseball and the leagues that are members of the National Association of Professional Baseball Leagues can be found here, starting with the “Foreword,” with the rest of the rules obtained by clicking on the menu to the left of the “Foreword” and under “Official Rules.”

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