2nd honker
Mar. 19, 2018
News Picks from NYSDA Staff

News Picks
New York State Evidence Guide. The New York Unified Court System has begun to develop an evidence guide to assist attorneys and courts throughout the state. On their website, NYUCS indicates that "[t]his Guide is presently a work in progress. The Committee on the Guide to New York Evidence will publish additional rules as they are completed. The initial numbering of the rules skips every other number to allow the insertion of additional rules as necessary." Currently, there are sections on General Provisions , Relevance and Its Limits , Witnesses & Impeachment , and Hearsay . The Committee further notes that these rules are not intended to replace the case law that currently makes up the bulk of New York evidentiary law; rather, they are meant to assist practitioners in the implementation of the existing rules. Defenders who have questions about evidentiary issues are encouraged to contact the Backup Center.

"Practice Rules of the Appellate Division" Become Effective Sept. 15, 2018. Notice appeared recently on the request for public comment page of the Unified Court System website that new statewide practice rules for the Appellate Divisions were approved on Dec. 12, 2017 and will become effective this coming September 15. Comment was sought on proposed rules in May of last year; NYSDA was among those who responded .
The new rules do not make practice completely uniform across every department. For example, lawyers filing Anders briefs in the First, Second, and Third Departments are given a set of procedures to follow, while in the Fourth Department, attorneys are directed to "move to be relieved as counsel pursuant to People v. Crawford ...." Rule 1250.11(f).
Provisions regarding poor person relief appear in Rules 1250.4 (Motions) and 1250.11 (Additional Rules Relating to Criminal Appeals). The suggestion by the New York City Bar to "delete the language requiring defendants currently in custody to explain why funds previously used to post bail are not available to retain appellate counsel" was not heeded. Neither was NYSDA's call for reference to relevant portions of the Eligibility Criteria and Procedures promulgated by the Indigent Legal Services Office (ILS), particularly those relating to confidentiality of client information. New Rule 1250.4 notes that the subsection regarding poor person status in civil matters does not apply to certain Family Court Act and other appeals; subdivision (3) addresses appeals in "Family Court Matters."
The new rules will impact public defense representation in many ways. They affect not only direct appeals in criminal and family matters, but other potential related proceedings. As ILS notes in its Appellate Standards and Best Practices , public defense " counsel should be familiar with civil proceedings related to criminal defense, such as state writs of habeas corpus (CPLR article 70) and petitions for a writ of mandamus or prohibition (CPLR article 78)." (Commentary, Standard 1.)

CAL Notes That Appellate and Trial Counsel Must Communicate About 440.10s. In the February-March 2018 edition of Issues to Develop at Trial, the Center for Appellate Litigation (CAL) speaks directly to lawyers who represent clients at the trial level about the "potentially sensitive topic" of post-conviction motions. Acknowledging that a call from an appellate lawyer may engender reluctance or even hostility, CAL points out ethical rules and practicalities that make it necessary and not always threatening to take that call. The article also notes that trial counsel must share the client's file, cooperate with successor counsel, and should not cooperate with the prosecutor. On the latter point, a sample letter for responding to prosecutors' inquiries is provided. CAL points out that a successful malpractice suit in the wake of an ineffectiveness finding is rare.
Among authorities cited are the New York Rules of Professional Conduct ; the American Bar Association (ABA) Criminal Justice Standards, The Defense Function ; ethics opinions from the ABA and NYS State Bar; and others. Public defense lawyers should also refer to the NYS Office of Indigent Legal Services Appellate Standards and Best Practices , e.g., Standards XXV and XXVI.
Prior editions of Issues to Develop at Trial are available at www.appellate-litigation.org/issues-to-develop-at-trial . As always, NYSDA commends CAL for sharing this resource.

State Attorney Loan Forgiveness Program Application Available. The application for the state's District Attorney and Indigent Legal Services Attorney Loan Forgiveness Program (Education Law § 679-e) is now available on the NYS Higher Education Services Corporation (HESC) website . The deadline for filing an application is May 1, 2018. The maximum award available is $20,400 or total eligible student debt, whichever is less. Payments are made annually at $3,400 for each year of qualified service or the remaining loan debt, and no payments are allowed after the debt is paid in full. For more information on the state's loan forgiveness program, contact the HESC Scholarship Unit at scholarships@hesc.ny.gov or 888-697-4372.
A summary of the state program and other loan forgiveness and repayment assistance programs is available here. Public defense attorneys with additional questions about the program after reading the available materials may contact Susan Bryant or Jacob Drum at NYSDA: 518-465-3524.

Tech News: Cyberthreat Basics for Lawyers. A recent article in the ABA Journal provides a helpful overview of cyberthreats that attorneys should be aware of. Cyberthreats 101: The biggest computer crime risks lawyers face covers issues such as use of unsecured Wi-Fi, human error, malware, and web jacking. Another useful article in ABA's Cybersecurity and the law series is 5 cybersecurity steps you should already be taking . Other helpful technology resources include: ABA Formal Opinion 477 (Securing Communication of Protected Client Information); NYSBA Social Media Ethics Guidelines ; NYSBA Ethics Opinion 1019 (Confidentiality; Remote Access to Firms Electronic Files); and Ethical Implications of Emergent Technologies (New York Legal Ethics Reporter).

Gideon at 55. March 18 was the 55th anniversary of the Gideon v Wainwright decision. Today NYSDA salutes all public defense lawyers working hard to fulfil the promise of the right to counsel across the state. We join others across the nation commemorating Gideon Day/Public Defense Day. And we applaud advocates pressing for improvement of the public defense system and criminal and family court justice in New York and around the country!

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