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2 TRANSITIONAL ANd NON-TRANSITIONAL MCLE CREdITS:

This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 2 Transitional and Non-Transitional credit hours: 2 Ethics.

NYCLA-CLE I

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mploymEnt

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Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY

scheduled for January 13, 2011.

Pr o g r A m Co- sP o N s o r:

NYCLA Ethics Institute

Pr o g r A m Ch A I r:

Jane B. Jacobs, Klein Zelman Rothermel LLP

FA C u L t Y:

david Wirtz, Littler

Kathleen Peratis, Outten & Golden LLP

Lewis Tesser, Tesser, Ryan & Rochman LLP

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Information Regarding CLE Credits and Certification

Ethics Issues in Labor and Employment Law

Tuesday, January 11, 1011

6:00 PM – 9:00 PM

The New York State CLE Board Regulations require all accredited CLE

providers to provide documentation that CLE course attendees are, in

fact, present during the course. Please review the following NYCLA rules

for MCLE credit allocation and certificate distribution.

i.

You must sign-in and note the time of arrival to receive your

course materials and receive MCLE credit. The time will be

verified by the Program Assistant.

ii.

You will receive your MCLE certificate as you exit the room at

the end of the program. The certificates will bear your name

and will be arranged in alphabetical order on the tables directly

outside the auditorium.

iv.

If you arrive after the course has begun, you must sign-in and

note

the

time

of

your

arrival. The time will be verified by the

Program

Assistant.

If

it

has been determined that you will

still

receive

educational

value by attending a portion of the

program,

you

will

receive

a pro-rated CLE certificate.

v.

Please

note:

We can only certify MCLE credit for the actual

time you are in attendance. If you leave before the end of the

course, you must sign-out and enter the time you are leaving.

The time will be verified by the Program Assistant. If it has

been determined that you received educational value from

attending a portion of the program, your CLE credits will be

pro-rated and the certificate will be mailed to you within one

week.

vi.

If you leave early and do not sign out, we will assume that you

left at the midpoint of the course. If it has been determined that

you received educational value from the portion of the program

you attended, we will pro-rate the credits accordingly unless

you can provide verification of course completion. Your

certificate will be mailed to you within one week.

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New York County Lawyers’ Association

Continuing Legal Education Institute

14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Ethics Issues in Labor and Employment Law

Thursday, January 13, 2011

6:00 PM – 8:00 PM

Program Co-sponsor: NYCLA’s Ethics Institute

AGENDA

5:30 PM – 6:00 PM Registration

6:00 PM – 6:10 PM Introductions and Welcoming Remarks

Moderator & Program Chair: Jane B. Jacobs, Klein Zelman Rothermel LLP

6:10 PM – 8:00 PM Discussion of Hypotheticals

Kathleen Peratis, Outten & Golden LLP Lewis Tesser, Tesser, Ryan & Rochman LLP

David Wirtz, Littler

The panelists would like to thank Melissa

Pierre-Louis of Outten and Golden LLP for her

assistance in preparing these materials.

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1   

HYPOTHETICAL1

1. EX PARTE COMMUNICATION WITH SUPERVISORS AND MANAGERS OF A REPRESENTED

CORPORATION

Paula Plaintiff, a guard working at DiscrimCo, a large security contractor, retained Linda Lawyer to represent her in an action against her employer under Title VII. Paula alleged that her employer discriminated against her by failing to promote her on the basis of her gender. After the lawsuit was filed, DiscrimCo’s in-house counsel interviewed three employees of DiscrimCo: a lieutenant, a guard, and a dispatcher. Although the lieutenant had some supervisory authority over Paula, it was not claimed that he or any of these three employees were involved in the alleged discrimination against her or exercised management authority with respect to the alleged discriminatory or retaliatory acts. As part of her investigation into the conduct of DiscrimCo, Linda also communicated ex parte with the three employees. In addition, Linda also interviewed Henry Honcho, Director of Operations at DiscrimCo. Henry directly oversaw the operation of DiscrimCo’s private security division, in which Paula worked and received daily reports from Paula’s supervisors about activity in the division, as well as any complaints made by the employees. When Paula filed her complaint, Honcho met with DiscrimCo’s attorneys and told them, “Sort this thing out, and fast. I want reports and results by the end of the month.”

a. Has Linda acted unethically by communicating with: i. Henry Honcho?

1. If yes, would your answer still be the same if Mr. Honcho never communicated with counsel?

2. What if Mr. Honcho never communicated with counsel but he was the individual responsible for failing to promote Paula?

ii. Lieutenant?

1. If no, what if the Lieutenant was one of the individuals who interviewed Paula for the promotion? Would your answer matter if he recommended not promoting her?

iii. Guard?

1. If no, would your answer change if the Guard voluntarily went to in-house counsel’s office every morning and volunteered to give information on the case.

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HYPOTHETICAL 2

2. INVESTIGATIONS AND LAWYERS AS WITNESSES

Peter Plaintiff, an indigent African-American, worked for several years as a steel mill worker for PayLess Corp. One day, Peter got into a verbal altercation with his supervisor, Barry Bigot. After a heated discussion, Peter walked away from Barry. As he left, Peter heard Barry shout “That’s why we pay you so much less!” Shocked, Peter spoke with several of his coworkers and discovered that African-American employees earned nearly 40 percent less than their Caucasian coworkers. Peter sought legal representation, and secured the services of Thomas Tenured, a civil rights attorney with a great deal of experience dealing with companies like PayLess Corp. In fact, Thomas has successfully tried five discrimination suits against PayLess Corp. and its subsidiaries. At trial, Thomas calls himself to the witness stand and testifies that “I’ve seen the horrors PayLess Corp. has committed. In all my years of practice, I have never seen a more racist and illegal regime set forth by an employer.

o What could Thomas have done differently?

ƒ Could Thomas testify if he withdraws as counsel and refers the case out?

ƒ Could Thomas have used the information he gained in the prior cases to the client’s advantage without testifying?

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HYPOTHETICAL 3

3. EMPLOYEE’S USE OF EMPLOYER’S COMPUTER TO COMMUNICATE WITH HER

LAWYER

Julie Jones, an African American senior accounts payable clerk with FairPay Corp., is concerned that she is going to be terminated. She has worked for FairPay for 25 years, and she believes that Don Diego, whom she thinks is Hispanic, and who FairPay recently hired as an accounts payable clerk, is being groomed by Michael Manager to replace her. Julie goes to see Larry Lawyer. He tells her to work hard and keep a log of whatever anyone says about her work performance or anything that suggests discriminatory animus towards her because of age, sex, color or national origin, and send the results to him on a weekly basis. Five months later, Julie suspects the day of her termination is imminent, and she asks Larry if she should download some recent emails showing unfair criticism of her work and one suggesting bias. He tells to go ahead, and she first copies the emails and then deletes them from her computer. The next day she is terminated, allegedly for poor performance. Michael Manager learns that she has deleted the emails. Connie Consultant, recommended by FairPay’s lawyer, David Defense, reviews her hard drive to see what she took and what she deleted and finds that Julie engaged in all of the communications with Larry that are described above from her desktop at work. Connie tells David what she has found but does not forward the communications, asking David what she should do with them. The following day, FairPay receives a demand letter from Larry. FairPay’s policy tells employees that they should have no expectation that their communications on its computers will be private or confidential, and that only minimal personal use is permitted.

• Can David Defense review the emails?

• Must David get Larry Lawyer’s permission before doing so?

• If no, must David at least tell Larry that he intends to do so?

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HYPOTHETICAL 4

4. REPRESENTING FORMER IN-HOUSE LAWYER AGAINST HER FORMER

EMPLOYER

Allen Attorney, an Asian-American, served as in-house counsel for MeanCo, a large manufacturing conglomerate. During the course of his employment at MeanCo, Allen defended several discrimination lawsuits on behalf of MeanCo. These representations necessarily involved investigation into the hiring and retention policies of his employer. After 15 years of loyal service, Allen was passed over for a promotion, which was given to a Caucasian coworker with less experience and tenure at MeanCo. Allen believed this was because of Larry Liable, the Director of MeanCo’s legal department. When Allen complained, he was fired. Allen asks Corey Counselor to represent him against his former employer.

What information can Allen divulge to Corey?

ƒ May he inform Corey about discriminatory acts that MeanCo. has engaged in with respect to:

• Asians?

• A racial class outside of his own? • Females?

• What if these discriminatory acts were not reported to the company and were just the acts of single employees?

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JANE B. JACOBS is a partner at Klein Zelman Rothermel LLP. Jane is a litigator both

for the labor and employment and communications law areas of the firm’s practice. In

addition to litigating employment cases, Jane has represented the firm’s clients in

collective bargaining, union organizing campaigns, and other union matters. Jane

represents large Fortune 500 companies as well as smaller companies. She appears

before the NLRB, EEOC, and in federal and state courts and administrative agencies.

Jane’s Internet marketing litigation practice includes appearances before federal and

state courts, the Federal Communications Commission, the Federal Trade Commission,

and the New York State Public Service Commission. Jane teaches seminars on labor

law and the Americans with Disabilities Act in the Extension Program of the New York

State School of Labor and Industrial Relations (Cornell). Jane also has lectured

extensively about internet marketing regulation. Prior to joining the firm in 1984, Jane

worked at the National Labor Relations Board both in New York and Washington, D.C.

Jane received a B.S. degree from Cornell University, Industrial and Labor relations and

a J.D. degree from Antioch School of Law, She is admitted to practice in New York,

before the U.S. Supreme Court, U.S. District Court, Southern, Eastern and Northern

Districts of New York, and the U.S. Court of Appeals, First and Second Circuits.

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KATHLEEN PERATIS is a partner at Outten & Golden LLP. She heads its Sexual

Harassment and Public Interest practice groups. She has represented plaintiffs in

precedent-setting constitutional and employment cases in federal and state courts

across the country. She has been designated "SuperLawyer" in New York's Super

Lawyers - Metro Edition 2008. She has written books and articles and lectured

extensively on many issues of discrimination, civil rights, and human rights and writes a

regular column in The Jewish Daily Forward. She is a member of the National

Employment Lawyers Association (NELA) and its New York affiliate, the Labor and

Employment Section of the American Bar Association, and the Association of the Bar of

the City of New York. She has received awards for distinguished service from Human

Rights watch, the New York Civil Liberties Union, Jewish Fund for Justice, MFY Legal

Services and Veteran Feminists of America. She is a Fellow of the American Bar

Foundation, an emerita member of the board of trustees of Human Rights Watch and

founding Chair of its Women's Rights Division, co-chair of its Middle east and North

Africa division, former director of the Women's Rights Project of the American Civil

Liberties Union, former president of the New York Civil Liberties Union, and former Vice

Chair in North America of the New Israel Fund.

She graduated magna cum laude from the University of Southern California in 1966,

and graduated from U.S.C. law school in 1969, where she was an editor of the Law

Review.

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LEWIS TESSER is a senior partner at Tesser, Ryan and Rochman LLP, a firm that represents

professional practices. Mr. Tesser assists doctors, lawyers and other professionals and businesses – when they have partner changes, have partner disputes or are involved in licensing or disciplinary proceedings, Among other things, Lew is the Director of the Ethics Institute at NYCLA, on its Executive Board and Editor-in-Chief of NYCLA’s ethics Institute’s new publication , New York Rules of Professional Conduct, Oxford University Press 2010. In addition to his law degree, Lew holds a Masters Degree from The Wharton Business School, University of Pennsylvania. He served as a Captain and Judge Advocate in the United States Army and as Assistant United States Attorney.

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9   

David Wirtz

is a partner at Littler. He has represented management exclusively for 36 years. His clients include information technology companies, insurance companies, medical and dental supply distributors, property managers, food wholesalers, construction firms, hospitality organizations, municipalities, and school districts. Mr. Wirtz has built his reputation on 24/7 service, pragmatic advice, and solutions for HR professionals concerning policies, procedures, and decisions regarding hiring, firing, promotions, compensation, and leaves. Mr. Wirtz's litigation success record includes multiple defense verdicts and settlements in which plaintiffs pay defendants.

Education

B.A., Johns Hopkins University, with honors J.D., Cornell Law School

Publications

Mr. Wirtz's articles on topics ranging from the history of restrictive covenants to retaliation claims have appeared in the New York Law Journal, HR Magazine, and The Municipal Lawyer. His most recent articles appeared in the New York Law Journal on April 29, 2009, entitled "Pandemic Preparation for New York Workplaces" and in Employment Law 360 on May 10, 2010, entitled "Annual Evaluation Systems and Malpractice." He is an editor of Littler Mendelson's Guide to International Employment and Labor Law and a contributor to the NYS Bar Association's treatise entitled "Public Sector Labor and Employment Law." He has appeared regularly as an expert commentator on employment-related issues for local television and radio stations, including WCBS, UPN News, Bloomberg Radio, and WINS Radio.

Lectures & Presentations

Mr. Wirtz has been an Adjunct Professor at Cardozo Law School since 1992 and a guest lecturer at the Columbia Business School. He is known as a "lawyer's lawyer" and frequently lectures to other employment attorneys and in-house counsel. He has spoken on topics ranging from "The Intermittent Leave Puzzle Under the FMLA" to "Ethical Issues Confronting In-House Counsel in Mediation." Most recently, he spoke on "Employment Arbitration Agreements and Their Alternatives" for the Association of Corporate Counsel.

Activities

American Bar Association, Labor and Employment Law Section

New York State Bar Association, Commercial and Federal Litigation Section (Committee on Corporate Litigation Counsel), and Labor and Employment Law Section (Committee on Ethics and Professional Responsibility)

New York County Lawyers Association, Committee on Professional Ethics Empire State Counsel Honoree for Pro Bono Activities

Association of the Bar of the City of New York, Professional Ethics Committee

Cases/Courts/Judges

U.S. Supreme Court

U.S. Court of Appeals, Second Circuit

References

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