Lawyer Joke Friday

It's time, once again, to poke fun at my favorite, money-making profession ... music doesn't count because we musicians are generally lucky to play for free beer.

Q. How can you tell if a lawyer is well hung?

A. You can't get a finger between the rope and his neck.

I know, I know ... but the joke HAS to be geared toward the masculine, otherwise the double entendre is lost.

Until next week, TTFN.

A Note On Minimum Wage Confusion

Effective January 1, 2007, New York State increased its minimum wage to $7.15 per hour. This is exclusive of industries where tip service credits are applicable (e.g., food services) which thereby result in a lower hourly rate. The Federal minimum wage is presently $5.15 per hour.

There appears to be widespread confusion as to which of these two minimum wages to pay. In New York (as well as many other states), the rule of thumb is to pay the higher of the two rates. Since New York's minimum wage rate is higher than its Federal equivalent, New York employers are generally required to pay the higher wage rate. Why is this information important? Well, it seems that some employers may have been paying the lower rate unwittingly (I hope it wasn't intentionally), and are now being advised by their friendly New York State Department of Labor investigator that back wages, penalties and interest are due. As a general proposition and where a good faith defense of full payment does not exist, I look to the credo of "The Borg" for guidance on this one ... resistance is futile.

Orwell Strikes Again

Earlier this week, I posted an article entitled Orwellian Redux which discussed political efforts to silence and remove Raoul Felder, the Chairman of New York's Commission on Judicial Conduct, for off-color, non-politically correct comments he made in a book he co-wrote entitled "Schmucks." Well, "Big Brother" is at it again. By a unanimous vote, the Commission has now stripped Mr. Felder of his right to speak publicly on behalf of the Commission and to sign letters as its Chairman. The blitzkrieg on independent thought and speech continues with nary a whimper from anyone. Complacency, folks, is an extremely dangerous thing. In times like these, when free thinking and opinion are routinely castigated by those who portend (or pretend) to be the carriers of freedom's torch, remember this little ditty: "The only thing necessary for the triumph of evil is for good men [and women] to do nothing."

Lawyer Joke Friday

Here we go again, folks.

Q: How many lawyers does it take to change a light bulb?

A: None, they'd rather keep their clients in the dark.

Until next week, TTFN.

Supreme Sophistry

Today, the United States Supreme Court upheld the Federal law banning partial-birth (i.e., late term) abortions. The case is Gonzalez v. Carhart, et al. In a 5-4 decision, the Supreme Court, in what I perceive as a prelude to the eventual overruling of Roe v. Wade, confirmed the Constitutionality of the Partial-Birth Abortion Ban Act of 2003 (the "Act"). Although the Act contains an exception allowing the procedure to be performed where there is a threat to a woman's life, no such exception exists with respect to a woman's health. In essence, doctors throughout the nation now face criminal fines and imprisonment if they attempt to perform the procedure even if their patient was raped and has severe health problems resulting from the unilaterally imposed pregnancy after the first trimester.

I am appalled as both a man and an attorney. I am appalled not because late term abortion is a good thing (it is not), but because the value of women in our society has been cheapened significantly by the Court's decision which, as the dissent states, "tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG)." I am appalled because the Court has departed from over thirty years of precedent which, in virtually all cases, consistently required that laws regulating abortion safeguard a woman's health at any stage of pregnancy. I am appalled because according to the Court's fallacious reasoning, a woman seeking judicial permission for the procedure would have to make an "as-applied claim," the final determination of which is likely to come (after the exhaustion of all appeals) well-after the birth or the death of the woman due to health complications arising from the pregnancy in the first instance ... take your pick. Now, there's some REAL rational thought from the powers that be, eh?

With this decision, a particular health decision for a woman is now to be made by politicians rather than her physician. If men were the ones who became pregnant, I'm fairly certain that a law like the one at bar either never would have been proposed or, if it had, never would have gotten out of committee. Supreme sophistry, indeed!

More Blog Rollin'

Many thanks to Thomas Swartz for listing "Juz The Fax" on his blog roll over at New York Legal Update and for his favorable comment on today's article entitled "Orwellian Redux."

Orwellian Redux

George Orwell seems to have been right. His dystopian novel, "1984," describes the degradation of Winston Smith, for daring to speak his mind, by the totalitarian state in which he lives. The latest move toward a "1984" scenario comes from New York's Governor, Eliot Spitzer and the State's Commission on Judicial Conduct. The Governor recently criticized Raoul Felder, the chairman of the Commission, for making off-color comments in a book he co-wrote with comedian Jackie Mason entitled "Schmucks." The Governor also opined that such comments might be subject to sanctions if they had been made by a Judge. Further, the other members of the Commission issued a vote of "no confidence" against Mr. Felder which could be a prelude to his removal from office

What, pray tell, does Mr. Felder's off-color, satirical or even "dangerous" statements as contained in his book have to do with his ability to perform his duties as chairman of the Commission? Nothing! This appears to be yet another circumstance of recent note where freedom of speech is compromised severely in favor of political correctness; it is censorship in a most insidious guise. It is part of the nightmare-like reality where an individual's finances and reputation are subject to ruination if his/her independent thought and commentary are not in keeping with societal "newspeak." Throughout the course of recent history, persons like Mr. Felder who ran afoul of the state's ideology were sent to re-education camps by the likes of Hitler, Stalin, Mao and Ho Chi Minh. That's essentially what happens to Winston Smith in "1984" where his "re-programming" eventually brings him to love and accept the embodiment of state totalitarianism known as "Big Brother."

Hopefully, Mr. Felder's stated vow to fight for freedom of speech and thought will not be futile. I, for one, would not like to see him wind up as an Orwellian-like protagonist.

Cool Stuff

There's a very cool post over at Sui Generis which many of you may find funny and interesting. It's called "What In the World Is a Wuzzle?" and shows that even a Federal court can have a sense of humor. Check it out here.

Lawyer Joke Friday

Here's a saying I heard the other day:

"Changing lawyers is like moving to another deck chair on the Titanic."

Keep those cards and letters coming, folks. Until next week, TTFN.

Second Guessing

Sometimes, clients just don't get it. They issue an "instruction" to counsel which the attorney may believe is not in the client's best interest from a strategic, legal and/or ethical standpoint. Failing to follow the directive, based upon the attorney's considered professional judgement, elicits disdain and criticism from the client which may lead to the retention of new counsel. Conversely, implementing the instruction blindly because "that's what the client wants" could wreak havoc to the matter in numerous ways while still resulting in client dissatisfaction. What's an attorney to do?

I really don't think there's much of a conundrum here, although some may disagree. There's no doubt that listening to the client and attempting to implement their wishes is very important. However, when the client's desires conflict with the attorney's legal and/or ethical judgement, I believe that it is more important for the attorney to stand his/her ground and, if the client is insistent, to withdraw as counsel. When clients attempt to micromanage matters and insist that they are "right" even though the attorney is convinced otherwise, it becomes extremely difficult for counsel to function effectively and independently. What gives? Why do clients pay an attorney for advice and then ignore it? Is it because they don't like what they're hearing? Is it because they think they "know better" when it may be fairly obvious that they don't? Do patients tell their surgeons how to operate?

Losing a client because they perceive that you are not following their advice is painful, both emotionally and economically. Nonetheless, I think the professional consequences of caving in to second guessing by a client can be far more severe and permanent than a temporarily deflated ego and the loss of a few dollars.

And, Speaking of Fees ...

Last week, the Appellate Division, Second Department, held unanimously that an attorney may recover fees for work performed in a non-matrimonial action even in the absence of a retainer agreement or letter of engagement as required by 22 NYCRR 1215.1. The case is Seth Rubenstein, P.C. v. Ganea.

Since 2002, New York has required attorneys in non-matrimonial actions to obtain a retainer agreement or letter of engagement from the client which specifically sets forth the terms of the representation. In Ganea, the attorney entered into a verbal agreement with the client (shortly after the Rule went into effect) to represent her in connection with a guardianship proceeding involving her husband. The lower court awarded the attorney a guardianship fee and held that such fee award barred further recovery. Both parties appealed. The Appellate Division rejected the client's argument that no payment was due because of the lack of a retainer agreement or letter of engagement. The court held that the attorney could pursue the amount claimed due since nothing in 22 NYCRR 1215.1 contained a penalty for non-compliance, and that a client could obtain an unfair windfall if strict adherence to the Rule were required. The client's testimony that she was aware that the attorney's services were not rendered on a pro bono basis is noteworthy. The Appellate Division opined that the result in Ganea would have been different had this been a matrimonial matter since there are extremely strict disciplinary requirements in those cases.

However, this case is not a bed of roses for attorneys. As the Appellate Division noted, with a verbal agreement, it could be very difficult for an attorney to prove the terms of the retention and to establish that they were fair, understood, and agreed upon. It just goes to show you ... an agreement is only as good as the paper on which it is written.

Lawyer Joke Friday

Hey now ... once again, it's time for Lawyer Joke Friday.

Q. How do you get lawyers to smile for a picture?

A. As you're about to press the shutter, yell out "say Fees!"

Until next week, TTFN.

"Yeah, But The $#!% Owes Me Money!"

I've heard this phrase from employers WAY too many times with respect to their employees or soon to be former employees. Let's see, the worker either broke something, "removed" something from the premises without permission, has yet to return the expensive set of tools that were borrowed two years ago for "only a couple of days," hasn't yet repaid that loan for a new truck, or has otherwise reduced the employer's net worth in some way. "Hey, Randy ... can't I just take it out of his paycheck?" In New York, the answer is an unequivocal "NO!"

New York Labor Law Section 193, et seq., generally prohibits an employer from making any deductions from an employee's wages except those required by law (e.g., payroll taxes, child support orders, wage garnishments, etc.) or certain deductions expressly authorized in writing by and for the benefit of the employee. Such authorized deductions are limited to payments for insurance premiums, pension or health and welfare benefits, contributions to charitable organizations, the purchase of U.S. savings bonds, union dues or assessments, and similar payments for the employee's benefit. Sorry, folks ... deducting money from employee wages to repay a loan or to recoup the value of stolen or damaged property is prohibited, even if the employee agrees to it in writing. And, here's the real kicker ... there are criminal penalties for violating the statute!

So what's an employer to do in these situations? Very little other than possibly pursuing whatever remedies may be available at law. Of course, when the next request for a loan is made, the employee could be directed to the nearest bank.

Do Pro Se Litigants Have An Advantage?

I fully understand the need for pro se litigation. Its been etched indelibly into the legal fabric of our nation from the outset and, as a practical matter, gives those who may be unable to afford counsel (or who just feel the need to play "lawyer") the ability to pursue their claims through the judicial system. I also understand that the judiciary tends to cut a good deal of slack to pro se litigants given their general unfamiliarity with the legal process. In all, the concept is, as Martha Stewart might say, "a good thing."

What I DON'T understand is why pro se matters are not subject to additional scrutiny in order to prevent frivolous claims and the resulting waste of judicial resources in having to dispose of them. Granted, claims contained in pleadings, motions, etc., are generally subject to either Federal Rule 11 requirements or their State equivalents to help ensure that they are well-founded and that a good faith, reasonable inquiry into the matter has been made. However, I wonder what percentage of attorneys are sanctioned for filing frivolous claims versus those pro se litigants who do so. My bet is that very few of the folks who represent themselves get hit with sanctions of any kind.

Here's a case in point. In Altman v. New York City Department of Education (No. 06 CV 6319, S.D.N.Y. - 3/23/07), a pro se Plaintiff (a teacher) brought a discrimination action against her former employer (the Board of Education) and four individual former co-workers alleging that she was fired based on her national origin and age in violation of Title VII of the Civil Rights Act ("Title VII") and the Age Discrimination in Employment Act (the "ADEA"). The individual named Defendants moved for partial judgment on the pleadings seeking dismissal of all claims against them individually on the grounds that they did not have personal liability under Title VII and the ADEA. The Court agreed and dismissed those claims inasmuch as neither statute authorizes discrimination suits against employees in their individual capacities.

Now, had an attorney brought such a plainly frivolous claim, I am fairly well convinced that some form of sanction would have been imposed; even a cursory inquiry into the applicable law as applied to the facts in Altman would have revealed that the individual Defendants there were not personally liable under the subject statutes. Is such a result fair where the likelihood of sanctions being imposed against a pro se litigant (whether by Motion or otherwise) for asserting a similarly frivolous claim or defense is slim to none? If so, are the courts (intentionally or unwittingly) giving an advantage to those representing themselves? And then, should legal papers filed by pro se litigants be vetted by courts for obvious errors of law (such as that in Altman) to obviate waste and expense?

Pretty interesting stuff, n'est-ce pas? To argue that those representing themselves may actually have some type of advantage over those with counsel seems anathema to basic notions of fair play as well as the whole David versus Goliath scenario. But maybe, just maybe, there's really something to it. What do YOU think?

A Prevailing Wage Snippet

Most, if not all, States have laws requiring the payment of prevailing wages and supplemental benefits for those employed on State public work construction projects. One of the areas of confusion for contractors in the public work area concerns the payment of overtime wages and benefits. In New York, for example, Labor Law Sec. 220, et seq., states that all work performed on a public work project in excess of 8 hours in any one day, or more than five days in any workweek, constitutes overtime. This is far different from private sector construction projects where overtime is calculated generally based on work performed in excess of 40 hours in any workweek as set forth in the Federal Fair Labor Standards Act. Unfortunately, employers performing public work may not take these differences into account; this can result in underpayments to employees, together with attendant penalties, interest and, in some cases, debarment.

Each State may have different daily overtime minimums for public work, so it may be wise to consult with your local Department of Labor for appropriate information.