NYCLA Celebrates Outstanding Women in the Legal Profession at 103rd Annual Dinner

20171211_192229Do you think that a bar association annual dinner could be so thought-provoking and memorable that it will be talked about for months to come and so much fun that the entire audience left smiling?  If you don’t, you didn’t attend the New York County Lawyers Association’s 103rd Annual Dinner on December 11, 2017 at the Grand Hyatt New York which was attended by a crowd of more than 1,000 people and was chaired by Robert L. Haig _MG_6560of Kelley Drye & Warren LLP.  The event celebrated “Outstanding Women in the Legal Profession” and observed the 100th Anniversary of Women’s Suffrage in New York.

The evening began with a procession of 54 outstanding women Judges, General Counsels, law firm partners, and others who NYCLA honored at the Dinner.  The procession entered the Empire Ballroom of the Grand Hyatt accompanied by a high volume rendition of Helen Reddy’s “I am Women” and led by a performance actress portraying the famous women’s rights activist Susan B. Anthony.  Attorney General Eric T. Schneiderman provided greetings and the audience saw a video from Dinner Honorary Co-Chair Hillary Rodman Clinton (the other Honorary Co-Chair was Senator Kirsten E. Gillibrand).

Former Chief Judge Jonathan Lippman _MG_6649presented the 2017 William Nelson Cromwell Award to the Honorable Janet M. DiFiore, Chief Judge of the State of New York, and the Honorable Colleen McMahon, Chief Judge of the United States District Court for the Southern District of New York. _MG_6414The 2017 Boris Kostelanetz President’s Medal was presented to Eugene P. Souther, Senior Counsel, Seward & Kissel LLP and NYCLA Past President.
_MG_6599  Speeches from the Annual Dinner are available to view here.

One of the many highlights of the evening was the impassioned speech which Chief Judge Colleen McMahon presented on accepting the Cromwell Award.  The New York Law Journal published the entire speech on December 13, 2017 and it has provoked many discussions throughout the New York legal community.  In her speech, Chief Judge McMahon urged men and women to ensure that the current sexual harassment scandals do not lead to a different type of discrimination against women:  treating women and men differently at work in any respect.

Another highlight throughout the evening was provided by the actress portraying Susan B. Anthony who mingled with the crowd during the reception and presented excerpts from Miss Anthony’s most famous speech during the Dinner.

Thank you to all of our volunteers, guests, Board of Directors and sponsors who helped make the night such a success!

Please click on the images below to view our photo gallery of the evening for more pictures of the event please visit the NYCLA on Instragram @nycountylawyers  additional photos will be posted soon:

_MG_6500
Processional of Honorees
_MG_6489
Sophia Gianacoplos, Executive Director of NYCLA & Susan B. Anthony
_MG_6461
Robert L. Haig, Annual Dinner Chair and Fmr. Chief Judge Jonathan Lippman
_MG_6452
Outstanding Women in the Legal Profession Annual Dinner Honorees and Attorney General Eric T. Schneiderman
Advertisements

NYCLA Holds Free Forum to Discuss Pros and Cons of Calling A NY State Constitutional Convention

On October 25, 2017 at the New York County Lawyer Association Home of Law NYCLA hosted: NY Constitutional Convention: Why is it on the ballot? How should I vote? a free forum 

On November 7, New York State voters will decide on the referendum question, “Shall there be a convention to revise the constitution and amend the same?” The referendum is presented to voters only once every 20 years – so it is more important than ever that New York State residents understand the issues at stake and the consequences of their vote.

The esteemed panel presented both sides of the issue, providing essential information for voters to consider when casting their votes.

NYCLA President, Michael McNamara, welcome the audience of participants. The Moderator, Professor Richard Briffault, the Joseph P. Chamberlain Professor of Legislation at Columbia Law School, maintained an informative debate, granting each panelist 15 minutes to discuss their position on the issues, followed by questions from the audience.

The last Constitutional Convention held in New York States was the Constitutional Convention of  1967. The New York State Constitutional Convention of 1967 was held in Albany from April 4 – September 26, 1967. The proposed Constitution was submitted to the voters on November 7, 1967 at a general election. All of the 1967 Convention’s proposals were rejected by the people.

Panelists included:

In favor of a Constitutional Convention:
Evan Davis
, Senior Counsel, Cleary Gottlieb
Henry M. Greenberg, Shareholder, Greenberg Traurig, LLP

Against holding a Constitutional Convention:
Charles S. Warren,  Partner, Kramer Levin Naftalis & Frankel LLP, former regional administrator, EPA
Susan Welber, Staff Attorney, Civil Practice Law Reform Unit,  The Legal Aid Society

This public forum was co-sponsored by the New York City Bar Association. For recent articles on the event please see links below:

Take the Long View and Remain Optimistic
By Jerry H. Goldfeder, The New York Law Journal

https://www.law.com/newyorklawjournal/sites/newyorklawjournal/2017/10/31/1101letter-goldfeder/?back=law

Bar Associations Push for Constitutional Convention With Some Dissent
By Jeff Storey, The new York Law Journal

https://www.law.com/newyorklawjournal/sites/newyorklawjournal/2017/10/30/bar-associations-push-for-constitutional-convention-with-some-dissent/?back=law

Photos by Toni valenti

Trade Secret Litigation: The Inevitable Disclosure Doctrine in New York — Alive or Dead?

Trade Secrets concept with smartphone

This article will discuss whether the inevitable disclosure doctrine could be relied upon when seeking a preliminary injunction under the Defend Trade Secrets Acts of 2016 (“DTSA”)

The Basics:

Where applicable, the inevitable disclosure doctrine allows a plaintiff company to establish a claim of trade secret misappropriation by demonstrating that a former employee’s prospective or new job will inevitably lead him to disclose the plaintiff’s trade secrets to his future or new employer or to rely on such information even where there is no evidence of actual disclosure. The underlying justification is that, once proprietary information is obtained, it is virtually impossible for a person to not use such information in a subsequent similar position. If a former employee who holds knowledge of trade secrets is hired by a competitor for a similar position, courts that have adopted the inevitable disclosure doctrine have considered such facts sufficient to find threatened or actual misappropriation and have enjoined the prospective or new employer from employing the person in a position similar to the one he previously had.

The factors courts have considered in determining whether to apply the inevitable disclosure doctrine include:

  1. the level of competition between the past employer and the new employer;
  2. whether the former employee’s prospective or new position with the new employer is similar to his former position; and
  3. the steps that the new employer has taken to prevent the employee’s reference to and use of trade secrets belonging to the prior employer.

State courts have had mixed reactions to the doctrine’s application. While it has been accepted by courts under state trade secret law in several jurisdictions such as New Jersey, Delaware, and Illinois, other states – including Maryland, California, and Florida, to name a few – have explicitly rejected the doctrine, typically to safeguard employee mobility.

There are legitimate policy considerations that fall on both sides of the debate over the inevitable disclosure doctrine. On the one hand, application of the doctrine could be seen as essential to protect the confidentiality of trade secrets that companies have a genuine right to protect and an interest in protecting. On the other hand, the doctrine may serve to constrain valuable economic productivity and prevent someone from doing what he does best, and therefore prevent him from achieving his income potential without any actual evidence of bad faith or misconduct on his part.

 

 

The Doctrine’s Origins and Heyday in New York

Inevitable disclosure is not a new doctrine. In New York, its origins date back almost one hundred years to Eastman Kodak Co. v. Powers Film Products, Inc., 189 AD. 556 (4th Dep’t 1919). The doctrine’s heyday was in the 1990s as demonstrated by the decisions in Lumex, Inc. v. Highsmith, 919 F.Supp 624 (E.D.N.Y. 1996) and DoubleClick, Inc. v. Hendersen, 1997 WL 73143, at *4 (N.Y. Co. Ct. Nov. 7, 1997). In Lumex, the United States District Court for the Eastern District of New York concluded that the doctrine was sufficient to offer the missing evidence of actual proof of use of trade secrets on a preliminary injunction motion simply because a former employee had signed a noncompete agreement, even in a situation in which the departing employee acted with genuine good faith. In DoubleClick Inc., the New York State Supreme Court in New York County held that, even in an instance where there was no noncompete agreement, when the departing employee had left with physical or electronic data files, the employee’s inevitability of use or disclosure of trade secrets was demonstrated by the already established misconduct.

The Doctrine Falls Out of Favor in New York

The decisions in these two cases reflected an accepting approach to the inevitable disclosure doctrine by New York courts. That did not last long. The doctrine quickly withdrew from its peak when employers began to use it as an alternative to a noncompete agreement. In Earthweb v. Schlack, 71 F.Supp 2d 299 (S.D.N.Y. 1999), for example, the employer attempted to enjoin a former employee from taking a position with a competitor even though the parties’ agreement did not contain a noncompete provision. The U.S. District Court for the Southern District of New York held that, absent actual evidence of misappropriation of trade secrets, the inevitable disclosure doctrine could not be applied to recognize a de facto noncompete agreement and prevent an employee from accepting the new job altogether.

International Business Machines Corp. v. Visentin

International Business Machines Corp. v. Visentin, 2011 WL 672025 (S.D.N.Y. Feb. 16, 2011) provides a relatively recent example of a situation in which a New York federal court refused to find that a former senior executive would inevitably use or disclose the former employer’s trade secrets. The court recognized that the inevitable disclosure doctrine could be used as the grounds upon which an injunction may be granted in the proper context. However, after a lengthy analysis of the employee’s responsibilities in his former position, the nature of the purported confidential trade secrets, and the alleged reasons why the former employee would inevitably use or disclose trade secrets to his new employer, the court denied the motion for a preliminary injunction.

IBM senior executive Giovanni “John” G. Visentin had declared his intention to resign to accept a position working for Hewlett-Packard Company (“HP”). Despite Visentin’s offer to remain at IBM for a transition period, IBM rejected his offer and immediately retrieved Visentin’s laptop from his home. The next day, it filed a complaint against Visentin for breach of contract and misappropriation of trade secrets and sought for a preliminary injunction. At the end of a four-day hearing, the court denied IBM’s motion.

 

Visentin had entered into a noncompete agreement with IBM which provided that he would not work for a competitor for one year after the cessation of his employment at IBM. The court in Visentin stated that Visentin’s efforts to act in ‘good faith’ reduced the likelihood that his employment at HP could risk harm to IBM. For instance, Visentin’s commitment not to take any documents electronically or otherwise from IBM and to provide HP with a list of clients for whom he was banned from working supported his claims that he had no intention of using or disclosing any of IBM’s confidential information. Visentin’s demonstrated good faith in his resignation essentially provided the court with the basis to conclude that he would not ultimately be motivated to violate his agreement or break the law.

Free Country Ltd. v. Drennen

In Free Country Ltd. v. Drennen, 2016 WL 7635516 (S.D.N.Y. 2016), decided in December of 2016, the U.S. District Court for the Southern District of New York refused to use the inevitable disclosure doctrine to prevent a departing employee from soliciting customers using his former employer’s “Master Contact List” for its clients in his new position at a competitor in the absence of a proper noncompete agreement.

The DTSA has spurned the use of the inevitable disclosure doctrine as a means of preventing an employee from accepting a new employment offer. While the DTSA provides for injunctive relief to be granted to prevent threatened or actual misappropriation of trade secrets, any conditions placed on a person’s employment in an injunction must be based on “evidence of threatened misappropriation and not merely on the information that the person knows.”

Practical Pointers: How, if at all, can a New York employer use the inevitable disclosure doctrine to protect itself from competition from former employees who have knowledge of trade secrets?

The cases discussed above provide several valuable instructions for both employers seeking to maintain the confidentiality of their trade secrets and those who wish to extend-hire personnel from competitors for similar positions.

At the risk of stating the obvious, a narrowly drafted noncompete agreement is the most effective way to prevent misappropriation of trade secrets. In such situations, the inevitable disclosure doctrine can be invoked to bolster an employer’s motion for a preliminary injunction in reliance on the noncompete provision. The narrower the scope of the noncompete provision, the more likely most courts will be to enforce it as drafted.

To maximize the likelihood of successfully enjoining a former employee, a noncompete provision should, if possible, explicitly list the competitors by whom the employee is barred from accepting a job offer working in the same or a comparable capacity and/or explicitly list clients whose solicitation is prohibited. It would be beneficial for an agreement to include a provision specifying that the employee would inevitably use or disclose confidential information if he were to work for one of the specified competitors or solicit a particular client. A departing employee, especially one with access to legal counsel to review and negotiate the noncompete agreement, would likely find it extremely difficult to successfully later challenge the terms to which he explicitly accepted.

When an employee announces his intent to accept a new position working for a competitor, employers should avoid acting prematurely, because such a response may encourage a court to find that the former employer has acted spitefully in an effort to punish the departing employee. In Visentin, for example, IBM failed to create a record showing that it had acted prudently, consciously, and purposefully in the interests of protecting its trade secrets and not punitively to punish Visentin or HP.

On the converse, companies should make demonstrated efforts to ensure that any employee hired from a competitor refrains from taking any electronic or other confidential information from his former employer to minimize any appearance that the employee plans to use or disclose trade secrets of the former employer in his new position. The hiring employer and the departing employee should document and implement safeguards in order to try to avoid misappropriation of trade secrets, such as client lists, so that they can demonstrate those safeguards in any future litigation that may result.

Where possible, which will not always be the case, an employer should devote time and effort to structure a new employee’s position to reduce the probability that it appears to be in substantial conflict with the employee’s position at his former employer, if it is a competitor.

Going Forward

Employers are encouraged to utilize narrowly constructed noncompete agreements for a relatively limited group of valuable employees whose resignation could cause harm to the company’s genuine business interests. Given the fact-intensive application of the inevitable disclosure doctrine, employers cannot derive universally applicable one-size-fits-all instructions to ensure the protection of trade secrets or to avoid violating the noncompete agreements of a competitor. Both Visentin and Free Country, however, provide meaningful guidance as to ways in which the equities, taken in the aggregate, can influence a court’s application of the doctrine. While New York courts no longer invoke the doctrine to create a de facto noncompete provision, the inevitable disclosure doctrine can still be an effective tool in a company’s arsenal while seeking to enforce a noncompete agreement.

Moreover, while a court cannot enjoin an individual based on inevitable disclosure under the DTSA, a trade secret owner may nevertheless allege inevitable disclosure in a complaint under the DTSA, along with relevant facts, and, if the complaint withstands a motion to dismiss, proceed with discovery, which could eventually reveal additional evidence needed to fully validate the claim.

Rich has served as a legal commentator on CNN, FOX, and several other major networks on employment and litigation-related issues.  He is a member of the NYCLA Board of Directors and the Task Force NYCLA in The 21st Century. Rich will be moderating a CLE program which offers 2 credits (including 1 ethics credit)  at NYCLA on November 1  entitled “Recent Developments In Restrictive Covenant and Trade Secrets Litigation.”  A networking reception will take place from 6:00 p.m. to 6:30 p.m. with the program taking place between 6:30 p.m. and 8:30 p.m.

A Few Tips When Filing (and Opposing) a Preliminary Injunction Motion to Protect Trade Secrets

The Defend Trade Secrets Act of 2016 (the “DTSA”) is a federal statutory vehicle that companies can use to try to protect their most valuable assets (along with their employees, hopefully) — their trade secrets. Since the DTSA is only slightly more than a year old, there have been relatively few federal court decisions addressing the scope and breadth of the statute. One such case decided this summer in the Northern District of Illinois, Cortz, Inc. v. Doheny Enterprises, Inc., 2017 WL 2958071 (N.D. Ill. 2017), sheds light on the type of information afforded protection under the DTSA. The decision also offers insight as to how a plaintiff can improve its chances of securing a preliminary injunction at a misappropriation hearing under the DTSA as well as under state law and how a company defendant can attempt to defeat that motion.

In Cortz, plaintiff Cortz, Inc., a seller of swimming pool and spa products, initiated a suit against a former employee, Tim Murphy, and his new employer, Doheny Enterprise Inc., and sought a preliminary injunction prohibiting Murphy from continuing to work at Doheny. Among Cortz’s allegations were that Murphy possessed information about the prices that Cortz paid its vendors.

Cortz’s preliminary injunction motion was denied. The case provides us with at least three key takeaways vis-à-vis trade secret preliminary injunction motions.

First: Identify the Alleged Trade Secret with Particularity and Not Just a Body of Information in Which a Secret May Lie.             

Cortz alleged in its complaint that “financial information” had been misappropriated. Although the DTSA includes in its definition of trade secret “financial information” and “financial data,” the Illinois District Court held that a mere allegation of misappropriated “financial information” was insufficient under the DTSA. Instead, the Court stated, a plaintiff must allege “‘concrete secrets.’” Cortiz, Inc., quoting Composite Marin Propellers, Inc. v. Van Der Woude, 962 F.2d 1263, 1266 (7th Cir. 1993) (per curiam).

During the hearing, Cortz introduced evidence that Murphy had access to pricing as to its 20,000 (!) different products with respect to its approximately 400 vendors and that vendor pricing is relevant for about two to three years. Cortz also introduced evidence that this price list was unique to Cortz even though its competitors purchased similar or identical products from the same vendors since specific retailers often negotiate their own prices with suppliers. Because Cortz had clarified that this was the specific information it was alleging to be a trade secret, the Court stated that it was prepared, for argument’s sake, to assume that Cortz had satisfied the particularity requirement under the DTSA.

The Court reached that conclusion despite stating that the facts that Cortz (i) had required vendors to sign an agreement containing a confidentiality clause and (ii) had entered into non-disclosure agreements with Doheny and Murphy while discussing a potential sale to Doheny (which obviously never went through) was insufficient to prove that it had adequately protected its trade secrets. Specifically, the Court stated, Cortz had failed to show, among other things, “the amount of time, effort, or money that it expended in developing its vendor pricing nor whether it would be difficult to duplicate its effort in doing so.”

As summarized below, Cortz’s failure to present admissible and credible evidence that the defendants had misappropriated its trade secrets was fatal to its preliminary injunction motion.

Second: Since the Rules of Evidence Apply at the Preliminary Injunction Stage, It Is Critical that Evidence of Misappropriation Falls within Applicable Rules.

At the risk of stating the obvious, the rules of evidence apply in preliminary injunction hearings. Thus, plaintiff’s counsel must ensure that the evidence it presents at the hearing is not only persuasive but admissible. During the hearing in Cortz, for example, the Court determined that certain third-party testimony was inadmissible hearsay because it was offered for the truth of the matter asserted and did not fall within a hearsay exception.

Of course, it is not enough for evidence to be admissible. It must also be credible and relevant. In Cortz, the Court found that there was no credible evidence that Murphy physically took any documents from his former employer, much less trade secret information, and that any vendor pricing information he remembered from his prior employment would be stale and irrelevant. Thus, the Court held that Cortz had failed to present admissible, credible, and relevant evidence to support its misappropriation claims.

At the risk of also stating the obvious, plaintiff’s counsel in a trade secrets misappropriation case, as in all cases, must:

  •  vet witnesses by assessing their credibility;
  •  ensure that evidence can be introduced for an admissible purpose; and
  •  determine whether the evidence at hand would further the plaintiff’s cause in court or is likely to be deemed irrelevant to the specific claims at hand.

Third: There Must Be Admissible, Credible Evidence of Actual, Not Merely Hypothetical, Misappropriation.

The Cortz Court pointed out that “it is well-established…that an ‘employer’s fear that its former employee will use the trade secrets in his new position is insufficient to justify application of the inevitable disclosure doctrine.’” Cortz, Inc., quoting Triumph Packaging Grp., 834 F. Supp. 2d 796, 809 (N.D. Ill. 2011). Among other evidentiary deficiencies, Cortz was not able to offer credible evidence that Murphy occupied the same or a similar function at Doheny as he had at Cortz. Further, Cortz’s contention that Murphy would inevitably disclose the supposed trade secrets was rejected because it was unable to demonstrate that he had in fact done so. The Court held that a preliminary injunction would not be granted in reliance on the much maligned so-called inevitable disclosure doctrine. (This doctrine is likely to be the subject of a future article.)

In conclusion, it is important for companies to consult counsel concerning steps that should be taken to try to ensure the protection of information that they consider to be trade secrets long before litigation is commenced. To be most effective, this advice must include an analysis of the particular jurisdiction’s requirements for treatment of information as legally protectable trade secrets in addition to requirements under the DTSA. Similarly, companies defending against misappropriation of trade secret claims under the DTSA should view Cortz as a good starting point for formulating their defenses against such claims at the all important preliminary injunction phase where these cases are often resolved.

Richard B. Friedman is the managing attorney of Richard Friedman PLLC, a six lawyer law firm which specializes in employment-related agreements, management side employment litigation, and commercial litigation.   Rich and his Of Counsel colleagues handle the following kinds of matters among others: Management side employment litigation involving, among other things, non-compete, trade secret, and fiduciary duty issues; Commercial litigation cases, particularly in the Commercial Division on whose Advisory Committee Rich serves as one of fifteen or so judicially appointment private practitioners with the then judges of that court; Compensation-related FINRA arbitrations for well compensated finance personnel against their former employers; Business divorces among partners, members of limited liability companies, and shareholders of closely held corporations; and Counseling, drafting, and negotiating on behalf of senior and mid-level executives and companies in connection with  employment, severance, and consulting agreements.

 

Rich has served as a legal commentator on CNN, FOX, and several other major networks on employment and litigation-related issues.  He is a member of the NYCLA Board of Directors and the Task Force NYCLA in The 21st Century. Rich will be moderating a CLE program which offers 2 credits (including 1 ethics credit)  at NYCLA on November 1  entitled Recent Developments In Restrictive Covenant and Trade Secrets Litigation.”  A networking reception will take place from 6:00 p.m. to 6:30 p.m. with the program taking place between 6:30 p.m. and 8:30 p.m.

Special education in Asian American communities

In New York City schools, approximately 200,000 are eligible for special education. Unfortunately, students with disabilities are not receiving the services necessary to meet their needs. The Department of Education frequently fails to provide timely evaluations to children and place them in the proper classroom setting. They also deny or fail to provide services such as occupational therapy, physical therapy, and counseling, and overlook the specific and particular needs of children in special education in setting priorities for their education. As a result, parents of children who are eligible for special education are left on their own with the daunting task of advocating for their children’s education in an unfamiliar, convoluted, and opaque system.

There are more than 12,000 Asian students receiving special education services in NYC schools, and yet Asian American youth with disabilities are often underrepresented in discussions about special education because they confront the “model minority” myth that makes it more difficult for them to get the recognition and help they need, and as a result, their problems are more often ignored. There is also the challenge of conflicting sentiment by some Asian families against providing special education to their children with disabilities, assuming that once they choose special education for their children, they become labeled unfavorably in the community. Even those families whose children receive services face hurdles as it is not uncommon for them to be limited English proficient and their difficulty in communicating with the school adds an additional hardship in their ability to effectively advocate for their child’s needs. This combination of language and cultural barriers can make access to these services harder to obtain and suggest that the needs of the community are being systematically overlooked by advocates.

As an education attorney at Legal Services NYC, I provide direct legal services to parents of children with disabilities to help them obtain the special education services they need to succeed in school. I am also the co-chair of the Education Committee at NYCLA, and in the course of our work on education issues, we as members of the committee have continually sought to ask ourselves what kind of education related issues are of interest to other attorneys and advocates.

Last year, I began conducting outreach with a community based organization in Flushing, and quickly realized that there was an unmet need for education advocacy in the Chinese community. My colleague, Nelson Mar, an education attorney in the Bronx, and a member of NYCLA, had noticed a similar trend in his advocacy of low-income Asian families. His client, L.R., was a seven-year-old boy with a disability attending a school in the Bronx. His mother was concerned that her son was not speaking much either at school or at home. Teachers at L.R.’s school would tell his mother that it was likely L.R. just didn’t care for talking and that it was not a big deal for boys to be shy; however, what they failed to notice was that he was not making any academic progress, or that his reticence to talk resulted from his being bullied by other classmates. With Nelson’s help, L.R. successfully filed suit against the Department of Education for its denial to provide him with appropriate educational services, and the DOE was required to pay for a private school for L.R. that had a program to address his speech impairment. According to his mother, “he has made huge progress” in his ability to communicate, and learn, since his placement at the private school.

Successes like L.R., and our work with community advocates in Flushing, have led Nelson and me to create a pro bono initiative which partners Asian American affinity groups in law firms and volunteers from the Asian American Bar Association to represent affected parents at special education hearings and/or provide advice and counsel. With legal services organizations chronically underfunded, pro bono attorneys can play an outsized role in securing justice for families of children with special needs.
As Nelson noted, “In the area of special education, results are very different with lawyers’ help and with the help of advocates. Good special education programs can bring a bright future to children with disabilities.” The hope is that this project will help families like L.R. and ensure that Asian American students can obtain the special education services to which they are entitled under the law.

If you know a community based organization that works within the Asian American community, and would benefit from a training on special education, please email nmar@lsnyc.org or aleipziger@lsnyc.org, or you have a contact that you believe might need some special education advocacy in the Asian American community, please contact the Legal Services NYC hotline at (917) 661-4500, Monday-Friday 10:00 am- 4:00 pm.

Amy Leipziger is a Co-Chair of NYCLA’s Education Law Committee.  Amy is a Senior Staff Attorney at Queens Legal Services with the Education Rights and Disability Advocacy Projects, and can be reached at aleipziger@qls.ls-nyc.org.  

Data Privacy and Security: An Introduction for In-House and Outside Counsel

By Richard B. Friedman, managing attorney of Richard Friedman PLLC

As is widely recognized, the attorney-client privilege is one of the most important fundamental principles in the legal profession. Every attorney has an obligation to protect his or her clients’ information and to keep attorney-client communications confidential. Of course, this principle applies to in-house counsel as well as outside counsel. Accordingly, it is crucial for both corporate legal departments and law firms to adopt and implement safeguards in order to protect client information. Although all lawyers presumably know that they have a duty to protect privileged client communications and information, many do not know how to do so. This article will briefly introduce the complex related topics of data privacy and security and provide some helpful initial steps that in-house and outside counsel should take in developing a plan to safeguard client information.

In this digital era, massive amounts of data are stored and transmitted electronically across a sea of systems and devices. In almost every kind of matter involving an organization, in-house and outside counsel have access to clients’ and employees’ personal information. It is no longer sufficient for in-house and outside counsel to rely solely on a company’s or a law firm’s IT department to handle cyber security issues. Indeed, many large companies, particularly in the financial services sector, are now conducting audits of their law firms’ data security protocols. A comprehensive data security plan needs to be developed in every organization and law firm by one or more lawyers in conjunction with the IT Department or an IT consultant and other stakeholders, if any, as described below.

  1. Statutes and Regulations
  • The very first step that in-house and outside counsel should generally take on behalf of their client organization with regard to data privacy is to determine the governing state statutes and regulations regarding data privacy and security protection. Some states have data privacy laws that require companies to develop written policies and procedures to provide administrative, physical, and technological safeguards for sensitive client information. By way of example only, here are a few statutes and regulations that counsel charged with participating in the development of cyber security policies and practices should be mindful of:
  • Statutes that Protect Social Security Numbers: New York, New Jersey, Connecticut, and Michigan have statutes that require written policies to limit access to employees’ Social Security numbers. In Michigan and Connecticut, companies need to maintain and publish a specific corporate policy in order to require Social Security numbers from customers.
  • Comprehensive Data Security Program Requirements: An increasing number of states, such as California, Connecticut, Florida, Illinois, Indiana, Massachusetts, Maryland, Oregon, and Texas, require companies to take affirmative actions to protect personal information that belongs to the residents of those states, including driver’s license numbers, bank account numbers, Social Security numbers, and medical information.
  • Payment Card Industry Data Security Standards: Many corporations receive payments from clients and therefore have access to clients’ credit card information. These corporations need to make sure that they comply with the Payment Card Industry Data Security Standards.
  • Breach Notification Requirements: All but three states require companies to provide notice when there has been a breach of “personal information” accessible to the organization.
  1. Identify Personal Client Information
  • State statutes and regulations should be just the starting point in seeking to ensure data privacy protection. In-house and outside counsel should consider, for instance, the types of personal client information to which the organization in question has access; whether the organization maintains such personal information indefinitely; whether the organization sponsors or provides services to health care plans; and whether the organization has a comprehensive plan to respond to data privacy breaches.
  1. Establish Internal Group to Coordinate Data Privacy Issues
  • Virtually every legal department should consider establishing an internal group to coordinate data privacy issues. This group should generally include personnel from the IT Department, the Accounting Department, the Human Resources Department, and the Legal Department—the areas where client personal information is often accessed the most. The group should be empowered to establish detailed steps to protect client data. For example, the group should consider:
  • Identifying all hardware, software, and devices such as laptops and cellphones that could store client information;
  • Classifying all digitally stored information by levels of sensitivity;
  • Determining which departments and which employees are most likely to have access to sensitive client information and how the information flows through the organization;
  • Identifying vendors and other third parties who maintain confidential client information; and
  • Reviewing existing agreements which require the organization to safeguard client information.
  1. Protocol for Data Breach Response
  • Counsel should also develop a protocol for responding to data breaches, including, among other things, who will lead the response teams, and which templates to use for various types of data security-related communications.
  1. Training
  • Law firms and legal departments should provide periodic training for employees who have access to client information and keep them informed about state regulations and charges in the company’s data privacy policies. In-house and outside counsel need to be thorough and thoughtful in helping their organizations identify, maintain, and safeguard all client information that their organizations maintain.

CONCLUSION

It is essential for in-house and outside counsel to take the foregoing steps in order to protect client information. Since individual and business clients increasingly demand heightened privacy protection, companies and law firms that fail to implement comprehensive data security policies will risk losing competitive advantage in the marketplace. In-house and outside counsel should share a leadership role with IT and other personnel in developing and implementing detailed internal policies and procedures for collecting, using, and disclosing the information that is needed to provide the services that their organizations render.

Richard B. Friedman is the managing attorney of Richard Friedman PLLC, an employment litigation, commercial litigation, and employment counseling firm.  Rich and his five Of Counsel colleagues handle the following kinds of matters:

  • Management side employment litigation involving, among other things, non-compete, trade secret, and fiduciary duty issues where the firm often represents an individual co-defendant or third party witness aligned with a referring law firm’s corporate client;
  • Commercial litigation cases, particularly in the Commercial Division on whose Advisory Committee Rich serves as one of fifteen or so judicially appointment private practitioners with the then judges of that court;
  • Compensation-related FINRA arbitrations for well compensated finance personnel against their former employers;
  • Business divorces among partners, members of limited liability companies, and shareholders of closely held corporations; and
  • Counseling, drafting, and negotiating on behalf of senior and mid-level executives and companies in connection with employment, severance, and consulting agreements.

Rich has served as a legal commentator on CNN, FOX, and several other major networks on employment and litigation-related issues.  He is a member of the NYCLA Board of Directors and the Task Force NYCLA in The 21st Century.

Rich will be moderating a CLE program on September 27 entitled “The Virtual Workplace.”  A networking reception will take place from 6:00 p.m. to 6:30 p.m. For more information and to register https://www.nycla.org/NYCLA/Events/Event_Display.aspx?EventKey=CLE092717

 

 

NYCLA Civil Court Practice Section Honors the Honorable Fern Fisher, Honorable George Silver, Honorable Peter Wendt and Civil Court employees, John Smith and Karissa Farinas

The NYCLA Civil Court Practice Section had its annual dinner on June 12, 2017 at the beautiful Battery Gardens Restaurant.  Our honorees were the Honorable Fern Fisher, Honorable George Silver, Honorable Peter Wendt and Civil Court employees, John Smith and Karissa Farinas .

The hard work and dedication of our honorees reflecton the spirit that makes the Civil Court the special and wonderful institution that it is.  Truly the “People’s Court”, New Yorkers from all walks of life come to Civil Court to have their disputes heard and adjudicated fairly and compassionately.  The Civil Court Practice Section seeks to recognize those individuals whose valuable service is essential to preserving the Civil Court as a unique forum for the dispensation of justice.

The Section also seeks to educate lawyers and the public about the Civil Court and offers practical advice on how to achieve fair and just results for the thousands of litigants who have cases there.  Over the past year, the Section has heard from several fine speakers who have recounted the important work performed in the Civil Court, including practitioners, judges, and our county clerk.  We have worked on projects designed to help attorneys and litigants understand the role and purposes of Civil Court, as well as get a better understanding of how to navigate through its many technical and complex proceedings.

Our honorees reflect the ideals of our Section.  This year we are particularly gratified to have honored both the outgoing and incoming Deputy Chief Administrative Judges for the New York City Courts.  Over the course of her 28 year career in the judicial system, Justice Fern Fisher’s impressive legacy includes the gifts of her exceptional leadership, tireless work ethic and passionate devotion to access to justice for all.  She will be deeply missed.  Justice Fisher is succeeded by the Honorable Justice George Silver.  Our Section was privileged to honor Justice Silver for his integrity, leadership and innovate approach to managing and resolving cases.  We look forward to working with him in his new role.   Judge Peter Wendt has had a distinguished career as one of New York County’s most respected and learned Housing Court Judges.  His anecdotes and memories of his many years of service were both entertaining and illuminating.    The Section also presented its Melvin C. Levine Distinguished Service Awards to court employees John Smith and Karissa Farinas, both of whom have provided invaluable assistance to the countless pro se litigants that appear in Civil Court.  Additional speakers included the Honorable Anthony Cannataro, Honorable Anne Katz and the Honorable John J. Kelley (Co-Chair of the Civil Court Practice Section).

The success of the dinner would not have been possible without the hard work and dedication of our Co-Chairs Suzanne Adams, who also serves as a Co-Chair of the Section, and Nicholas Moyne.  We were blessed with perfect weather, great food, drink and conversation and wonderful speeches by our distinguished honorees.  A good time was had by all!  We look forward to your participation in next year’s dinner.  Until then, please join our committees, as they are an essential part of the NYCLA experience.

 

All pictures were taken by Rachel Marks of Orah Photography. To order individual photos or view photo album please visit https://goo.gl/8bipmZ