MC&A Newsletter
Volume VIII  ::  November 2009
Public Interest Positions:
The New Option for New Associates?

In MC&A Newsletter Volume IV, we brought you news of the trend where law firms pay incoming associates a stipend to work in the public interest arena and defer their job offers for one year.  For example, deferred associates are finding positions with government and non-profit organizations such as the Legal Aid Society and New York City Law Department, to name a few.    These associates take on their own cases representing clients in various areas of the law, including housing and immigration.  This trend is the by-product of a fledgling economy in which law firms that had provided legal services to investment banks were hardest hit.
This trend has caught on and sparked discussions among law firms, non-profits and law schools to extend the program for years to come.  This would give new law school graduates the option of joining a public interest group for a year before practicing law as an associate at law firm.  The non-profit organizations are pushing for the permanent program, as it would continue to provide the organizations with top-notch graduates at no cost.  This is especially appealing during these difficult times where the Interest on Lawyer Account Fund (IOLA), which provides money to public interest groups, is smaller than in past years.  Large law firms, such as Cravath, Swaine & Moore, have also shown an interest in the program, but are hesitant to agree to anything permanent until they can see how the deferred associates fare on the job.
Recent law graduates have much to benefit from such a program because they would gain hands-on experience in advocacy, develop legal research skills, public speaking, courtroom experience, client interaction - all while providing a great service to indigent defendants and plaintiffs.  It's not such a bad deal for law firms either - they get new associates who possess the substantive skills necessary to thrive in a legal environment.  While it seems a win-win situation from the perspective of associates, law firms and public interest organizations, only time will tell if a permanent program will be truly beneficial for everyone.
Sources:  "Deferred Associates 'Hit the Ground Running' at Temporary Positions" by Nate Raymond, November 3, 2009, New York Law Journal;  "Informal Talks Mull Permanent 1-Year Public-Interest Stints for Associates" by Debra Cassens Weiss, November 3, 2009, www.abajournal.com.
When Zealous Advocacy Goes Too Far:  The Dangers of Coaching Clients
Under Rule 3.3 and 3.4 of the Model Rules of Professional Conduct, an attorney may not falsify evidence or counsel or assist a witness to offer false testimony.  While an attorney may assist a witness in preparation for testimony, a recent Connecticut judge's sanctioning of a lawyer for coaching her witness during a deposition will have lawyers question their methods of witness preparation.
Madonna Sacco, a Connecticut medical malpractice defense attorney, was handed down an $11,484 fee sanction from Judge Robert Shapiro of the Hartford Superior Court after she made statements during a deposition that were considered by the court as an "inappropriate suggestion to the witness as to how to testify."  The court determined that Sacco violated not only the discovery orders and rules of practice, but also the Rules of Professional Conduct.
Sacco's clients were sued for medical malpractice.  An example of Sacco's behavior at deposition, which Judge Shapiro determined to be witness steering, was Sacco's interruption when opposing counsel questioned the witness about a scan showing a "brisk bleed."  Sacco commented, asking where it said there was a brisk bleed, and when opposing counsel read from a medical report about a scan showing multiple images that suggested a brisk, active hemorrhage, she continued, "[b]ut that doesn't say that there's an active bleed."  Such comments suggested to the witness how Sacco wanted him to testify.  Sacco's behavior led opposing counsel to request that Sacco be barred from attending depositions in the case.  While Judge Shapiro felt such punishment was "draconian" as it would deprive a client from representation by an attorney of his or her choice, he felt that handing down a financial penalty was an appropriate sanction for pushing the boundaries of representation too far.
Sacco, upset at the accusations, claimed that Katz should be sanctioned for misusing ethical rules and threatening a grievance against her as a tactical means.  In addition, she claimed that Judge Shapiro improperly invoked the ethical rules by failing to provide fair notice.
This is not the first judicial reprimand for Sacco.  Judge Shapiro sanctioned Sacco in the same case in 2008 for coaching witnesses being deposed and ordered that she be fined $2,368.  In addition, between 1997 and 2007, Connecticut judges sanctioned Sacco in four other medical malpractice cases for violating the Practice Book rules for discovery.
Sources:  "Deposition Misconduct Draws Rare Sanction" by Thomas B. Scheffey, November 2, 2009, Connecticut Law Tribune;  "Judge Sanctions Lawyer $11.5K for Coaching Witness at Deposition" by Martha Neil, November 2, 2009, www.abajournal.com.
David Letterman Scandal Raises Issues of Sexual Harassment in the Workplace
Sexual harassment in the workplace is not a new concept, but with David Letterman in the spotlight, it has been a hot topic in recent weeks.  After being threatened with extortion, Letterman confessed during his October 1, 2009 taping of "The Late Show" to having had sexual relations with female staff members.  According to Letterman, such affairs were consensual, but given Letterman's high-powered status, some people are left wondering if the women involved felt they really had a choice.
Sex in the workplace is not considered sexual harassment when between two consenting adults.  Title VII of the Civil Rights Act of 1964 provides that sexual harassment is any verbal or physical conduct of a sexual nature that affects an individual's employment.  The U.S. Equal Employment Opportunity Commission (EEOC) specifically states that "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment."  Whether sex in the workplace rises to the level of harassment hinges on consent and simply because the boss is involved in the sexual relation, it does not automatically create a situation of sexual harassment.  The harasser's conduct must be unwelcome, and the harasser can be any person within the workplace holding any status. 
Thus far, none of the women involved with David Letterman have made claims of sexual harassment.  While society might be okay with subordinates engaged in sexual relations with one another, when a subordinate is involved in a relationship with the boss, there could be various implications.  Although unwelcome sexual advances constitute sexual harassment no matter the seniority of those involved, society is much more uncomfortable with the notion of inter-office sex where one participant believes that refusal to engage in the behavior will lead to job loss or a demotion.  One issue is that of favoritism for the person involved in the affair - since Letterman was the decision maker when it came to hiring and firing, those having sex with him may have been looking to either keep their job or move up the ranks.  And for those who opted out of canoodling with the boss, a feeling of job insecurity may haunt them.
Whether David Letterman's sexual escapades with female staffers was consensual or not, at least one writer for the show felt he played sexual favoritism with his female staff.  Nell Scovell left the show in 1990 after working with the "Late Night with David Letterman" for approximately five months.  Scovell chose to leave the show in part due to the sexual politics in the workplace, stating:  "I was not going to thrive professionally in that workplace.  And although there were various reasons for that, sexual politics did play a major part."  With her coming forward, it's possible that others will soon follow suit.
Sources:  "Writer: Letterman's Sexual Favoritism" October 28, 2009, www.myfoxny.com  (no writer's name was given for this article);  "David Letterman Reveals Extortion Plot and Confesses to Sex With Staffers" by Michael S. James and Lindsay Goldwert, October 1, 2009, www.abcnews.com; "The Letterman Situation:  What Constitutes Harassment?" by John Schwartz, October 2, 2009, New York Times; http://archive.eeoc.gov/types/sexual_harassment.html
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In This Issue
The Practice Corner
In The Spotlight
Recent News
MC&A Welcomes New Staff

Genese N. Walker
Special Counsel
Genese joined MC&A as a Litigation Analyst in February 2009 and has been promoted to Special Counsel.  Ms. Walker worked at the law firm of Ventantonio & Wildenhain PC as an associate, where she practiced in the firm's litigation
department.   Ms. Walker received a Bachelor of Arts in Government and Politics from the University of Maryland College Park and a Juris Doctorate from the American University, Washington College of Law where she served as a Junior Editor of the Business Law Brief, was a Marshall-Brennan Fellow, and member of the Moot Court Honor Society.  She also worked as a summer intern at the New York State Office of the Attorney General Antitrust Bureau, and clerked for the Federal Trade Commission in Washington, D.C.  Ms. Walker is admitted to the New York and New Jersey State Bars.
Robyn Sonis
Legal Intern
Robyn joined MC&A in October 2009 as a legal intern with the firm.  She graduated with honors in 2008 from Emory University School of Law and is admitted to both the New York and Massachusetts State Bars.  While a student at Emory, Robyn worked as a student public defender with the school's Indigent Criminal Defense Clinic and had the opportunity to try a criminal jury case as lead attorney where she won an acquittal for her client on all charges.  Robyn completed her undergraduate studies at the University of Maryland, College Park where she was an active member of her sorority and co-captain of the university's equestrian team.

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