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CIVILITY…CAN IT BE RESUSCITATED?

By Harvey Besunder, Esq., & Justin M. Block, Esq.

                         With civility being far less prevalent than ethical issues these days, it’s no wonder that our members tend to forget that the full name of this committee is “Professional Ethics and Civility”.  A vast majority of the committee’s time is spent addressing ethical inquiries submitted by our members.  Certainly, providing guidance on ethical issues is a very important task, and nobody could argue that it should take a back seat to anything.  It is critical, however, that we remember that civility should similarly be a central focus of the committee, and the bar in general.

                        Justice Ruth Bader Ginsburg famously said “You can disagree without being disagreeable.”  Never has this advice been more necessary that in the practice of law today.

                        It is almost axiomatic these days that, at some point, an adversary will shift from making legal arguments in support of his or her clients to ad hominem attacks, either in pleadings or in correspondence, spewing venom and invective about us, our legal skills, or perhaps even our backgrounds and ethnicity.  The natural instinct is to react in kind, pointing out to the Judge all of the things about our adversary that makes him or her a miserable human being and a terrible lawyer.  Oh, and he or she has bad breath too.  Our advice:  stop, take a moment, and remember that what we say and how we say it reflects on us. 

                        We are not recommending that you completely stifle your need to scream, pound your desk, or vent.  Those are not only necessary, they are expected.  Our advice is, however, to do that privately and not in legal papers or letters to the Court. Instead, take the high road.  As has so often been said, we are lawyers;  we don’t react, we respond.

                        In this regard, Judges are no different from our elementary school teachers.  When they see bad behavior, they will address it.  The role of the Judge is to decide cases, not to mediate disputes between lawyers who are unable to have normal civil discourse.  To compel our judiciary to try to get us to “talk nice to one another” not only distracts them from the task at hand, it also diverts already strained judicial resources.  It has been our experience that Judges are loathe to impose sanctions except in more extreme cases.  These days, with the economics of the legal profession adding stress to our lives, we posit the following question:  Who wants to take a chance on having a Judge decide we should take money out of our pockets because we were acting badly?

                        Similarly, having had numerous conversations with various Judges in many different courts, we have learned that it is virtually unanimous among the judiciary that vitriolic attacks on other lawyers (or Judges, for that matter) is never a winning strategy.  Judges are well aware that this sort of behavior is often the refuge of a lawyer who has no legitimate legal position to argue on behalf of his or her client.  The point of litigation is to convince the Judge that your position is correct.  When we stray from our lane and veer into the dangerous territory of incivility, we distract the Judges from our advocacy and cause them instead to focus on our own behavior.

                        That is not to say that improper or unethical conduct should not be brought to the attention of the Court or, under appropriate circumstances, the various committees governing the conduct of lawyers.  They absolutely should, provided that, under the current Rules of Professional Conduct, making a complaint is both necessary and appropriate.

                        Too many of us believe Carl Sandburg was right when he said “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”  In fact, the common corollary to this is “And when you are pounding the table and yelling like hell, make sure to throw some personal insults in there.  That’ll show ‘em.”  Again, not a way to prevail or even to distinguish ourselves, at least in the way we would like.

                        We have all heard it, whether from our inner voice or a mentor along the way.  Act like a lawyer.  Being mean-spirited and deviating from advocacy to abusive behavior is not acting as a lawyer.   Rather, it is childish bullying, and it has no place in the practice of law.

                        Way back in 1997, the Courts promulgated the Standards of Civility for the legal profession.[i]  In April of this year, the New York State Bar Association approved an update.  While we realize that these Standards are aspirational, we submit that the profession should be aware of them, and should strive to comport with these standards.  To paraphrase one of our favorite sayings, civility is not a character flaw.

 These can be found online at https://www.nycourts.gov/LegacyPDFS/IP/jipl/pdf/standardsofcivility.pdf

Note: Justin M. Block is of counsel to Sinnreich Kosakoff & Messina, LLP in Central Islip.  In addition to being the immediate Past President of the Suffolk County Bar Associatiion, he has been a member or chair of numerous committees, including over 20 years on the Professional Ethics and Civility Committee, serving twice as co-chair.  He is a frequent panelist at ethics programs.  Mr. Besunder served as President of the Suffolk County Bar Association, and has been a member and/or Chair of that Association's Condemnation Committee, Grievance Committee, Judiciary Committee, and Bench-Bar Committee.

 

 

 

 

 

 

 

 

Steady Referrals at Your Fingertips

by Paul Devlin, Esq.

Paul Devlin is an associate at Gentile & Tambasco where his practice focuses on personal injury litigation.  He is an active member of the SCBA serving on the Board of Directors; as co-chair of the membership services and activities committee and as a volunteer for the Suffolk Academy of Law.  

Paul Margiotta built his entire practice using the Lawyer Referral and Information Service (LRIS). The practice of law was a second career for him. Prior to obtaining his law license, Paul was president of the Nassau County Court Officer’s Benevolent Association, representing all Nassau County Court Employees. He wanted to hit the ground running in his new career so he accepted a position with the Town of Babylon Special Prosecutor’s office. One of the perks of the job was that he would be permitted to moonlight, i.e., he could work there full time and simultaneous build his solo practice. The biggest hurtle he faced in solo practice was client acquisition. How could he be at work all day and expect clients to find him and come to him at night? To solve this problem, he turned to the LRIS. This decision paid off in spades. The steady stream of clients that came to him through the LRIS were not fickle. They had called the SCBA and were serious about hiring a lawyer. In terms of hard numbers, he received about 7 referrals per week, and of those referrals he took on about 2-3 clients per week. The practice areas of the inquires varied from civil rights to school law, municipal law, contracts, litigation, and even personal injury. After a couple of years of this, he found that he was getting just as much work from prior clients who recommended him as he was getting from the LRIS. Today, he has a thriving practice in Bay Shore, The Margiotta Law Firm. He is also the Executive Director of the Suffolk County Traffic and Parking Violation Agency. He continues to participate in the LRIS and is now co-chair of the LRIS committee, along with former SCBA President Donna England.

For those readers interested in the LRIS but want to know more, the following is an overview of the system. Potential clients get routed to the LRIS in a few different ways. Countless attorneys have told me that when they have conducted an intake but are not interested in taking on a potential client, they recommend that the potential client call the Suffolk County Bar Association (SCBA), which routes them to the LRIS. Also, the SCBA has posted several signs in courthouses advising potential clients that they may call the SCBA if in need of a lawyer. The newest addition to the LRIS is The Community Lawyer. It is a cloud-based platform which has been in effect for just over a year. Potential clients and attorneys can access the system at scba.community.lawyer. Attorneys who are registered with the LRIS can update their profiles which are visible to potential clients. They can also upload their required proof of malpractice insurance and manage referrals they have received. When potential clients access the Community Lawyer website, they are asked a few questions to narrow their inquiry by location, practice area, and urgency. The potential client enters a brief description of their matter, and is given the option to pick one of up to three lawyers in the system. If potential clients call the SCBA rather than going online, they are routed to the administrator of the LRIS, Edith Dixon. She enters them into the Community Lawyer system manually and puts them through the Community Lawyer process just as if the potential client were to do the same for themselves online.

After a client chooses a lawyer, the lawyer will receive an alert and is responsible for arranging a half-hour consultation. The fee for the consultation is $25. The lawyer must collect the fee and turn it over to the SCBA. Payment to the SCBA may be made over the Community Lawyer platform. If the client retains the lawyer, the remainder of their attorney-client relationship is independent of the LRIS. If the attorney or client decides do not engage past the consultation, the client has the option to go back into the system and try another lawyer. In the last 12 months the LRIS has received approximately 3,500 inquiries. Below is a list of practice areas regarding inquiries in order of most popular to least popular. Only SCBA members in good standing are eligible to register for the LRIS for an annual fee of $125 plus $40 per practice area. Interested members may obtain an application in person at the SCBA or call 631-234-5511.  

Family, Landlord Tenant, Criminal, Social Security (Disability and Overpayment), Matrimony (Modest Means),Real Property,Negligence,Malpractice...and more.  Check the scba.com.community.lawyer for additional practice areas.

INSIDE THE COURTS

By: Hon. Stephen L. Ukeiley

 LANDLORD AND TENANT LAW: NEW LEGISLATION

 

            This is the first of a two-part series on recent law changes regarding rental properties. This Part concentrates on changes to the Real Property Actions and Proceedings Law (RPAPL) and provides an overview of some of the new laws.  Part II will focus on changes to the Real Property Law (RPL) and the General Obligations Law (GOL).

The Housing Stability and Tenant Protection Act of 2019

            On June 14, 2019, the Statewide Housing Stability and Tenant Protection Act of 2019 (the Act) was signed into law.  Part M within the Act, titled The Statewide Housing Security and Tenant Protection Act, pertains to all premises, regulated and unregulated, except where indicated otherwise in the statute.

  1. Rent Re-Defined

            With respect to residential premises, the term “rent” is now defined as “[t]he monthly or weekly amount charged in consideration for use and occupation of a dwelling pursuant to a written or rental agreement” (RPAPL § 702).  The statute further provides that “no fees, charges, or penalties other than rent” may be sought in a residential non-payment proceeding, thereby limiting the money judgment.  A lease provision to the contrary is void (id.).

  1. Payment of Rent Prior to Hearing (Non-payment Proceeding)

            RPAPL § 731 has been amended to provide that the payment of rent prior to the hearing renders a non-payment proceeding moot.  In other words, the full payment made prior to an adjudication on the merits equates to making the landlord whole, and, as a result, the tenancy continues.

  1. Foreclosed Premises

            With regard to holdover proceedings, the Act provides that where an occupant is evicted following either a property or tax foreclosure, the Court records relating to the lessee are sealed and “deemed confidential” (RPAPL § 757).  Unlike a non-payment proceeding, the occupant in a post-foreclosure holdover proceeding may not avoid the eviction by paying the amount awarded prior to the issuance of the judgment because the holdover proceeding was commenced for reasons other than the non-payment of rent.

  1. Rent Demand

            A Landlord may no longer make an oral rent demand (RPAPL § 711(2)).  Instead, a written rent demand must be provided on at least fourteen (14) days notice (formerly was three (3) days) demanding “[t]he payment of the rent, or possession of the premises”.  The rent demand must be formally served (id.).

  1. Proceeding Against the Estate

            The legislation permits a landlord to commence a summary proceeding against the Estate where the tenant passes away during the tenancy and rent is owed.  Any other occupant lawfully in possession may be named in the non-payment proceeding, but the warrant may not be used to remove them (RPAPL § 711 (2)).  The new law eliminated the requirement that a landlord wait three (3) months prior to commencing a summary proceeding where an administrator had not been named.

  1. Return Date and Service

           RPAPL § 732 now provides that where required by the rules of the local Appellate Division, the Notice of Petition and Petition in a non-payment proceeding is returnable within ten (10) days of service (was previously five (5) days).  If the tenant fails to appear, a judgment must be entered in favor of the landlord and, absent a circumstance permitting a longer stay pursuant to RPAPL § 753, the Court may stay issuance of the warrant of eviction up to ten (10) days from the date of service (RPAPL § 732(3)).  If the landlord prevails and the tenant appears, then the Court may stay issuance of the warrant of eviction up to five (5) days from the date of the determination (RPAPL § 732(2)).

            Otherwise, the Act amends the service provisions by eliminating the “5 and 12" Rule.  Instead, a landlord must cause the Notice of Petition and Petition to be served via formal service no fewer than ten (10) days but not more than seventeen (17) days prior to the return date (RPAPL§ 733).

  1. Answer

            Pursuant to RPAPL § 743, a tenant is not required to interpose an Answer.  Rather, the tenant may assert an Answer on the return date, either orally or in writing, and the Answer may include any legal or equitable defenses, and/or counterclaims.  The new legislation eliminated the opportunity to demand an Answer when the Notice of Petition and Petition were served between eight (8) and twelve (12) days prior to the return date.

  1. Adjournments

            Each party in a summary proceeding is entitled to one (1) adjournment.  RPAPL § 745(1) was amended to provide that when issue is joined (e.g., return date), the Court must grant a request for an adjournment, and, absent consent to a shorter period, the adjournment must be not less than fourteen (14) days.  The law further provides that “[a] party’s second or subsequent request for adjournment” is left to the discretion of the Court (id.).

  1. Unlawful Evictions

            Only the Sheriff, pursuant to a lawful order of the Court, may return possession of the property to the landlord. An unlawful eviction (e.g., the use of self-help and changing of the locks without the tenant’s permission or providing access) is now classified as a Class A Misdemeanor (up to one (1) year in jail).  An offender may be liable for civil penalties of $1,000 - $10,000 for each violation (RPAPL § 768).

  1. Warrant of Eviction

            The warrant of eviction must state the earliest date the eviction may occur (RPAPL § 749(1)).  In addition, the 72-Hour Rule has been eliminated.  Now, the Sheriff must formally serve a Fourteen (14) Day Notice prior to performing the eviction, and the warrant must be executed on a business day (Monday - Friday) between sunrise and sunset (RPAPL § 749(2)(a)).

  1. Stays

            RPAPL § 749(3) permits the Court, for good cause shown, (1) prior to execution, to stay execution of or vacate the warrant of eviction or (2) following execution, to restore the tenant to possession.  The provision further provides that where the full amount of rent is paid or deposited with the Court prior to the execution of the warrant, the warrant must be vacated unless the landlord demonstrates that the rent had been withheld in “bad faith”.

            RPAPL§ 753 governs stays on “issuance” of the warrant of eviction and collecting costs regarding residential premises for up to one (1) year (was previously six (6) months).  To grant the stay, the occupant must demonstrate: (1) the premises are used for residential purposes (other than hotels or rooming houses); (2) the application is made in good faith; and (3a) “due and reasonable efforts” were unsuccessfully taken to find similarly suitable alternative housing in the neighborhood or (3b) denial would cause “extreme hardship” to the applicant or the applicant’s family (RPAPL § 753(1)).  Outside a city of more than one (1) million residents, for those with a school-aged child, the term “neighborhood” is defined as “school district”.

            If the summary proceeding was predicated upon a breach of the rental agreement, the Court must stay issuance of the warrant of eviction for thirty (30) days to afford the tenant an opportunity to cure the breach (RPAPL § 753(4)).  A lease provision waiving the occupant’s rights under RPAPL § 753 is void as against public policy (RPAPL § 753(5)).

            Pursuant to RPAPL § 756, a summary proceeding involving residential property is stayed where the utilities are shut off due to the landlord’s failure to pay.  The stay remains in effect until such time as the utilities are paid and restored to “working order” (RPAPL § 756).

            In closing, the changes to the RPAPL are substantial. Counsel should thoroughly review the new laws and adjust accordingly.

Note: The Honorable Stephen L. Ukeiley is a Suffolk County Acting County Court Judge and Suffolk County District Court Judge. Judge Ukeiley is also an adjunct professor at the Touro College Jacob D. Fuchsberg Law Center and the author of numerous legal publications, including his most recent book, The Bench Guide to Landlord & Tenant Disputes in New York (Third Edition)©.

 

* The information contained herein is for informational and educational purposes only. This column should in no way be construed as the solicitation or offering of legal or other professional advice. If you require legal or other expert advice, you should consult with an attorney and/or other professional.

 

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