New legal specialties traineeship titles established by the State of New York

New legal specialties traineeship titles established by the State of New York

Source: NYS Department of Civil Service Director of Staffing Services

In a memorandum from the Department of Civil Service’s (DCS) Director of Classification and Compensation, dated December 27, 2018, New York State Departments and Agencies were notified of a restructuring of the Legal Specialties Traineeship.

The Department of Civil Service has issued General Information Bulletin No. 19-03 providing information about the selection plan and appointment process for the Legal Specialties Traineeship going forward and it has been posted on the Internet at:

https://www.cs.ny.gov/ssd/pdf/GIB19-03.pdf

Entry level appointments can be made to all levels of the Senior Attorney, Senior Attorney (Realty), Senior Attorney (Financial Services), Hearing Officer, Unemployment Insurance Referee and Motor Vehicle Referee traineeships, including the journey level. All appointments must be made to the highest level for which the candidate is qualified.

DCS will be reissuing the continuous recruitment, open competitive announcement for Legal Specialties soon.

How Lawyers Are Using Social Media in 2019

How Lawyers Are Using Social Media in 2019

Nicole Black, a Rochester, New York attorney and the Legal Technology Evangelist at MyCase - law practice management software for small law firms, notes that the majority of lawyers are learning about - and are using - social media. She asks "Are you one of those lawyers? Is your law firm using social media? Are you? How does your social media use compare?"

Her article "How Lawyers Are Using Social Media in 2019" is posted on the Internet at:

https://nylawblog.typepad.com/suigeneris/2019/01/how-lawyers-are-using-social-media-in-2019.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+SuiGeneris--aNewYorkLawBlog+%28Sui+Generis--a+New+York+law+blog%29

Qualifications for employment in the public service mandated by statute may not be waived

Qualifications for employment in the public service mandated by statute may not be waived

Martin, as Administratrix of The Estate of Christos Lekkas v State of New York et al., 82 AD2d 712

Christos Lekkas, a permanent Assistant Clinical Physician in the then Office of Mental Retardation and Developmental Disabilities,* [OMRDD] was never licensed to practice medicine in New York or in any State of the United States or in the Dominion of Canada. Summarily terminated from his position pursuant to Education Law §6522 of the Education Law which provides that "Only a person licensed or otherwise authorized under this article shall practice medicine or use the title physician," Lekkas initiated an Article 78 proceeding alleging that both the Federal and State Constitutions as well as §50.4 of the Civil Service Law required that Lekkas be given a pre-termination hearing or, alternatively, the opportunity to respond to the reasons given by the State for his discharge."

Prior to its repeal in 1971 §6512.1(b) of the Education Law had exempted full-time employees of a State hospital from the normal requirement of a State license to practice medicine. Announcements for civil service examinations for certain physician positions in State hospitals were not updated to reflect  that appointees to these positions now must be licensed to practice medicine by the State of New York. As a result, Lekkas' was permanently appointed an Assistant Clinical Physician following his passing a post-1971 examination for the position.

Supreme Court, addressing the narrow issue of whether a permanently appointed civil service employee in the competitive class may be summarily discharged from his or her position because he or she did not meet the minimum qualifications for the position, citing Ferrine v Bahou, 75 A.D.2d 669, as being dispositive of the issue, ordered Leekas reinstated to his former position with back pay and benefits "without prejudice to further proceedings" deemed advisable by the State.

The State appealed contending that Lekkas was ineligible for employment as an Assistant Clinical Physician because he was not licensed to practice medicine by New York State.

The Appellate Division framed the issue before it as "[w]here, as here, an ineligible applicant is appointed, the issue narrows to whether such an appointee can be discharged without being afforded an opportunity to challenge the reasons for his discharge." The court, affirming the Supreme Court's ruling, explained that resolution of this question turned on whether the qualifications for Assistant Clinical Physician were prescribed by regulation or by statute.

If Education Law, §6522 controlled, it was beyond the power and jurisdiction of the Civil Service Commission or any other administrative body to confer upon an applicant eligibility for appointment "denied to him [or her] by the Legislature."*

If a regulation controlled, the Appellate Division, citing Matter of Wolff v Hodson, 285 N.Y. 197, said that the decision was within the sole power and jurisdiction of the administrative agency and thus no appointee who has obtained permanent appointed to his or her position can be removed without being afforded the procedural rights set forth in §50.4 of the Civil Service Law, "despite the fact that had his [or her] infirmity to qualify for the position been timely known he [or she] would not have been appointed."

Noting that the duties of an Assistant Clinical Physician were defined administratively rather than by statute, the Appellate Division concluded that such duties were amenable to administrative change. The record, said the court, indicates that OMRDD notified Lekkas and others performing medical duties requiring licensure by circulating memoranda advising unlicensed physicians that they must desist from such practice except under the supervision of a licensed physician.**

  

Accordingly, ruled the Appellate Division, the State's contention that Lekkas was subject to job dismissal, without recourse to any benefits of his permanent employee status on the sole ground that he was practicing medicine without a license was without merit as Lekkas' assigned duties as an Assistant Clinical Physician were defined administratively, rather than by statute and thus such duties were amenable to administrative change. Presumably, Lekkas, on the date his employment was terminated, was discharging limited medical duties under the supervision of a licensed doctor.

Thus, said the court, the State's claim that Lekkas was subject to summary dismissal, without recourse to any benefits of his permanent employee status, on the sole ground that he was practicing medicine without a license as required by Education Law §6522 was without merit in view of the fact that the duties of an Assistant Clinical Physician were both defined and changed by administrative fiat. Accordingly, said the Appellate Division,  the provisions of the Civil Service Law rather than the Education Law controlled.

In the words of the Appellate Division, While it is clear that decedent would not have been eligible either to take the examination or be appointed if the announcements for civil service examinations for positions as physicians in State hospitals had reflected the 1971 statutory changes, it is equally clear that respondents could not terminate decedent on the ground of disqualification, in the absence of fraud, more than three years after the date of such appointment (see Civil Service Law, §50.4). Special Term thus correctly annulled decedent's discharge and ordered respondents to reinstate him with back pay and benefits" and affirmed the lower court's judgment , with costs.

It should be noted that Leekas died subsequent to the perfection of this appeal but prior to oral argument and the administratrix of his estate was substituted as party petitioner. As Special Term ordered Leekas' reinstated with back pay, the possibility exists that his estate could be the beneficiary of monetary benefits if it should ultimately prevail in this matter. Accordingly, the Appellate Division declined to dismiss the appeal on the ground of mootness.

* Subsequently redesignated the Office for People with Developmental Disabilities

** Such physicians were continued in employment and were given a period of time during which they could seek to obtain a New York State license to practice medicine. Leekas failed to obtain the required license prior to the deadline imposed to do so.

The decision is posted on the Internet at:

https://www.leagle.com/decision/198279886ad2d7122464

Why lawyers should know how to properly redact a document

Why lawyers should know how to properly redact a document

Source: George Khoury, Esq. writing on Technologist, Findlaw's Legal Technology Blog

Mr. Khoury notes that "if you don't know how to properly redact a document, you could end up telling the entire world what you never intended to tell anyone."

His article is posted on the Internet at:

https://blogs.findlaw.com/technologist/2019/01/why-lawyers-should-know-how-to-properly-redact.html?DCMP=cons_top:nwl

Settlement of a dispute by oral agreement

Settlement of a dispute by oral agreement

Doe v. Kogut, USCA, Second Circuit, Docket #17-1479 [Summary Order]

[N.B.Second Circuit rulings by summary order do not have precedential effect.]

The parties in this action reached a settlement at a conference with a magistrate judge. After reciting the terms of the settlement on the record, the federal magistrate judge asked both parties if they understood and accepted the terms of the settlement and understood that acceptance constituted an oral contract. Both Doe and Kogut affirmed these statements.* 

Doe, however, subsequently repudiated the settlement, stating that the oral contract was not binding and she had been under duress.

Kogut, on the other hand, moved to enforce the settlement agreement and the court granted Kogut’s motion, reasoning that the oral agreement was binding and that Doe was not under duress at the time of the settlement conference. The Circuit Court sustained this ruling, explaining that “[a] settlement agreement is a contract that is interpreted according to general principles of contract law” and need not be reduced to writing if it is entered into voluntarily on the record in open court.  

In order to determine if the parties intended to be bound by an oral contract, the courts consider four elements:

[1] The absence of a writing;

[2] Whether there has been partial performance of the contract;

[3] Whether all of the terms of the alleged contract have been agreed upon; and

[4] Whether the agreement at issue is the type of contract that is usually committed to writing.

In this appeal the Circuit Court found that [a] the parties did not expressly reserve their rights not to be bound by the oral contract nor did either party object to the magistrate judge's statement of the terms of the settlement; and [b] both Doe and Kogut affirmed that they understood they would be bound by the oral agreement.

Noting that the parties “agreed that the formal settlement documents [would] incorporate the . . . [oral] terms and conditions,” the Circuit Court commented that the magistrate judge expressly stated that any later writing would be merely a memorialization of the material terms discussed at the conference and neither party objected. This factor, said the court, favors enforcement of the contract.

The second factor - partial performance - was affected Doe’s change in counsel. Doe's new attorney subsequently advised the court that he had been fired by Doe and ultimately a third attorney advised the court that he was now Doe’s new attorney. Thus, said the Circuit Court, the fact that Kogut did not ultimately draft a written version of the settlement or tender the agreed upon amount of the agreed upon payment to Doe "does not necessarily show that the parties intended not to be bound by the oral terms," opining that "[a]t best for Doe, this factor is neutral as Kogut’s ability to perform his end of the settlement was impaired as a result of Doe's actions.

The Circuit Court of Appeals found that the district court properly concluded that there were no open material terms as the agreement, as outlined by the magistrate judge, covered monetary compensation, included a mutual non-disparagement clause, and required Doe to withdraw her "family court petition" by a specified date. When asked by the magistrate judge, Doe’s attorney confirmed that no material terms were omitted. Indeed the Circuit Court's ruling states that "the parties considered whether the intervention of [an extra mural element] would affect any of the terms of the agreement and concluded that Doe would be bound [only] as to actions within her control." The court explained that Doe inability to withdraw her petition "does not bear on whether the parties settled all of the terms, but rather on her ability to perform her obligations.'

Turning to the fourth factor, the Circuit Court opined that “[s]ettlements of any claim are generally required to be in writing or, at a minimum, made on the record in open court [and] [t]hat is precisely what happened here -- the parties settled their dispute on the record before the magistrate judge." In the words of the Circuit Court, "... the parties’ settlement was not particularly complex -- Doe released her claims against Kogut and agreed to halt, to the extent  possible, proceedings in criminal and family court in exchange for a monetary payment and a mutual agreed upon non-disparagement agreement. Thus this factor favors enforcement of the oral settlement of the matter.

Because the parties did not reserve their rights not to be bound by the oral settlement, no material term was left open for further negotiation, and as the parties had reached their agreement on the record in open court, three of the four Winston factors favor enforcement of the oral settlement agreement.** The remaining factor was deemed neutral, without impact on any of the material terms of the settlement. 

As to Doe's claim of duress, although a settlement contract or agreement, like any other, may be attacked on the grounds that it was procured by fraud, duress or other unlawful means, Doe offered no evidence supporting her contention she agreed to the terms of the settlement under duress. Further, Doe did not offer any evidence of her attorney’s alleged lack of preparedness that “preclude[ed] the exercise of [her] free will,” and thus the court found this argument insufficient to show duress.

The Circuit Court of appeals held that the oral settlement was valid and the magistrate judge did not err by enforcing the agreement.

* Although this case involved litigating the oral settlement of a marital dispute, it is instructive with respect to the elements that would be considered by courts in resolving disputes involving an oral settlement of a contract grievance, a disciplinary action, a collective bargaining dispute and similar administrative or quasi-judicial proceedings. 

** Winston v. Mediafare Entm’t Corp., 777 F.2d 78

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/404d26cd-ecb0-4497-825a-a510fbd78a2b/2/doc/17-1479_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/404d26cd-ecb0-4497-825a-a510fbd78a2b/2/hilite/