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37 Nassau Law. 1 (1989)

handle is hein.barjournals/nassau0037 and id is 1 raw text is: I-ONAt SAU                                  NAYER
THlE JOURNAL OF THE BAR ASSOCIATION OF NASSAU COUNTY, N.Y, INC.-

VoL 37. No. I, January, 1989

SERVING THE LEGAL PROFESSION AND THE PUBLIC SINCE 1899.

New Sanctions Against Criminal
Attorneys Take Effect

By Adrienne L Fitpse
EffectiveJanuary 1, 1989, the
Rulesof theChied Adminismtor
of the Court (22NYCRR) has
been amended to provide for
sanctions against any attomy
In a criminal action or pro-
ceeding who, without good
cause, falls to appear at a time
and place scheduled for a
crininalactionorproceedngto
be heard before a designated
court.
Thenewrulewhichdonot
apply to town or village courts,
permit judges to assess as much
as 1250 per failure against an
offending attorney.
Although the rules purport
to reach tardiness by an at.
torney as the language quoted
above seems to indicate, the
balance oftlherules appear to af.
fect only the attorney who is
totally absent from court on a
particular day, and then only if
no contact is made with-the
court at aLL The rules also re.
qure aearngbaforeanysanc-
tion h imposed.
in conducting a hearing the
court must consider the ex.
planation of theattorney for his
or her failure to appear, theade-
quacy of the notice to the at.
torney of the time and date
missed; whether or not the
court and opposing counsel
were notified Ir  ,ance that
the attorney would not appear;
whether substitute counselap-
peared and, conjunctively,
whether that counsel was pre.
pared to appear; or it an af.
fidavit of actual engagement
had been filed with the court.
The court is also to consider
the attorny's past record in
such mattem and, presumably,
the more often such Incidents
occurred, the higher the fine
will be.
Considered controlling to
one law secretary who re,
quested anonymity, is the a-
tent and nature of the harm
caused by attorneys failure to
appere'
The rules are very am.
biguous and purport to com-
pensate the courts for harm
done to them. If you do not
show up until a p.m. for a con'
ferice, lsthere any harmdone?
ifyoudonotShOwupataldoes
putting a case over and notify.
Ing the attorney really create
any harm to the court? And if
theStateis supposedtobecorrv
pensated for its injury, why do
the fines go to the Client Secud'
t FundIIthinkthat at thfirrt

Imposition of the first sanction
the attomeyls going to bringan
Article 78 and the rules will go
Into limbo until the courts
decide the Issue the source
concluded.
The rules apply to private
defensecounsellegalaldpros-
ecutors and othcrgov-nment
attorneys,
Accordingtomembersofthe
defense bar, the problem in
Nassa usvirtuallynonoCxstent.
I can think of one attorney
who Is notorious for just not
showing up without explana-
don' said Kneoh attorney and
former Assistant District At.
torney's Associate, Roger
Hausch. And I'm sure every
busy dfenseattorney has miss-
d at least one case in his or her
carccc.HowevetasanAsstant
District Attorney In Nassau, a
prosecutor with the State At-
tomey General and asa defense
attorney, Itis the rarecasewhen
any sort of sanction would be
justifieL
lHausch'svlewwasechoedby
other attorneys who felt the
rules were an overreaction to a
relatlvely Minor problem.he
Court's contempt power coves
thcsesituationswithafarlower
burden before sanctions can be
Crisis Inte
PASS to DN
By Jane D'Amko
PASS,The Probation Alcohol
ScrerinngSeAvlce program, has
been In existence for over a
year It Is designed as a caislsr-
terventlon rehabilitative ap-
proac to theldertiflcation and
teatment ot thet firt-offendcr
DWI population with current
or potential alcohol problems.
Recent program statistics on
first DWI offenders reveal
approximately:
•.ao% shc'.v no significant
alcohol problem.
.ao%   require  alcohol
education.
•6o%requrea forMo formal
alcohol treatment. Of this seg.
ment, the vast majority par.
ticipate in out.patient treat-
ment programs.
These figures are consistent
with national averages, which
reveal that from 7o. 8o% of all
firsttlmeDWIoffendersaxeIn
need of some form of alcohol
education or treatment.
Renalsto tin PASS program

imposed:'notedMarybethAb- Motor Vehicle Hearings and
bate, a defense attorney and
former Bronx Assistant District  M CLE    Top      NYSBA         Action
Attorney. I think the rule also
underestimated theimpacton      tt7JoaN.Satem=a        self'certification program by
the attorney's reputation such  The House of Delegates of  which each attorney would, at
behavior would have. I really  theNewYorkStateBarAssoo.-  thetimeofthebennalregistra-
thinkveryfewattorneyscould  tion met in conjunction with  tion, indicatethatheorshehad
live and get clients with a no.  theOctober generalmein  completed a minimal number
crwrim taton, partcuhrlyn  Sy cuse.Thepincpalitemon  vf hours of CLE programs dur.
criminal cases where your  the agenda Involved debates  gthpred'      woyrs
clients are subject to warrants  teandivoedebes        ing the preceding two years.
orp rea ' sh concluded,  concerning the report of the  The StateBarCommittee, In
orpretlalJailshconuded   special commnIttee on Lawyer  ItsstudyofmandatdCLE.met
Following an affirmative  Competency and the recom-  wththenDeanAndyS1monof
dete   nationbytheCourtthe  mendationsofe'flskForceon  our Academy of Law. Joel
Cour. must prepare a written  adm~trsatve adjudication.  Asarch and Carol Hoffman, of-
decslonorstatementgvlng the  The CLE report included  ficers of the Academy of Law
reasonsforfindingtheattorney  several uncontrovesial recom-  and drafteers of the Plan, and
inviolation.Thedecisionwould  mendations, unanimously  NCBA Executive Director
thenbe immediatelyenteredas    tbytheo   ase,themost   Deena Ehrlich In connection
a judgment. No mechanical  at
proisin fr pyin suh fnes sigilcafhwrestong  with The Nassau Plan.
provisionforpayingsuchn  statements that practice skills  WhletheStatearCommit.
rsatisfyng thefiled f udoi ent  courses ought be included in  teefoundnofaultwiththecon.
are provided for in the ru law school curricula and that  ceptsexpressed inThe Nassau
otr tha that payments to be greater emphasis ought be plan it rejecttd the concept of
d      tblie                     CLE ethics programs  mandated CLEon thebasisthat
Fund  establshedbyS              facets of the report,  there was no empirical data
97-t of the Finance Law.   however, elicited substantial  which showed that lawyers
NOTE.'Acopyofthenlesare  controversy. The first would  practidnginstatesthathad sudc
available by sending a self ad.  have required practical skills , requirements showed a greater
dressed, stamped envelope to  coures tobe completedby all,a. competency In the practice of
the author In careof Carway &M theae new admittees to pt  -r law.
FlIpse, 194 Old Countr Road,%-ic'eheYougLawytnSection -,. According to the State Bar
MlneCa.New Yorkc50olee  expresedconceraboutSUch   Committee, mandating CLE
include an additional ai cent  requirement as did many  wouldteducenethermaiprac
stamp to cover the cost of  members of the House. A   tice rates nor grievance
reproduction.              resolutionwas ultimately pass.  complaints.
Adrienne L. Flipse Is an ,. ed which stated the goal that  Opponents of the commit.
assocate edltor of the Nassau  new admittees should be  tee'sreport.thosewhofavored
LawyfxandaparMernCanay   familiar with the daily re-  mandated CLE, argued that
a F.lpse in M/ncola.       qulrementsofpractlceandthat  lawyer competency Is not
further analysis and studies  necessarilyrelatedtomalpraC
should be undertaken to ac  tice insurance or grievance
rvention: a                  comphlsh that goal.        complaints which are geneal.
The major focus of the   lysoundedinneglgenceorln.
t                          ouse's deliberations were  tentional malfeasance. Rather,
directed to that portion of the  the vast bulk of attorneys take
may occur at the time of at.  report which Indlcattd that  pdl&Intheirprofessionalcom.
ragrMetorplea,arthedlscre  mandated continuing lega' ,petce and donotattend the
tios of the Court and with the  education would not be al  number of CLE programs that
cosent of the defendant,   benefit to the legal professlod  they would likesimplybecause
Court-ordcredreferralsmay  or to the public.        oftheprloslttes that they must
abo occur as a condition of  That recommendation was  asign to the day to day opera-
sentence. The offeaer is  enctlycontrarytotheposition  tiomoftheirflrmsandservlc.
evaluated at the Probation  takenoytheNassauCountyBar  iag their clients' needs. Pro.
Department by a licensed   Assoclation Board of Directors  ponentsofmapdated CLE felt
alcoholtreatmentprofesslonal  during President Robinson's 'thatthevstaJoltyoflawyers
to determine possible treat.  te*m,andinJuneofsp enwhe  wouldselze theopportunityto
ment necds. A recommenda.  ItadoptedTheNasutlanasa    update their skills in CL  pro.
tionregardlngtreatmen:lspro. 'prototype for discusson pur-  grams and would actively par-
vided to the Court at the time  posesfor theImplnentatonof  ticipate In the lectures.
of sen.encing.             a mandated CLE program.      The committme's recommen,
(continued on pass II)  The Nassau Plan caRs for a    (continued on page I)

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