Tribute to Lazar Emanuel (1924 — 2011)
[Originally published in NYPRR February 2012]
The February 2012 issue of NYPRR is dedicated to the memory of Lazar Emanuel, Publisher and Managing Editor of the New York Professional Responsibility Report.
Goodbye, My Friend
By Roy Simon
With the passing of Lazar Emanuel, I have lost a dear friend, a valued advisor, a skilled editor, and an irreplaceable role model. As a tribute to Lazar, I will briefly recount the history of NYPRR, which meant so much to him and which contributed so much to the New York legal ethics community.
One day in December 1997, while I was sitting in my office at Hofstra, Lazar Emanuel called me. The call came completely out of the blue. I did not know who he was and had never spoken to him before.
Lazar told me he had an idea. He wanted to start a newsletter dedicated to covering professional responsibility matters for lawyers who practice in New York. I had published the first edition of Simon’s New York Code of Professional Responsibility Annotated a couple of years earlier and was teaching Lawyers’ Ethics at Hofstra every year, so I was immediately interested. But I warned him that a newsletter on legal ethics might be a hard sell. A professor in Detroit had started a newsletter a few years earlier and it lasted exactly one issue. The only legal ethics newsletter that had shown any staying power was the ABA/BNA Lawyers Manual on Professional Conduct Current Reports, which had the vast financial and editorial resources of the ABA and BNA behind it.
Lazar was undaunted. We exchanged a few ideas by email, then set up a meeting at Lazar’s offices in Larchmont in January 1998.
Lazar was a gentleman to his core, and had a striking appearance, with neatly combed white hair. He greeted me cordially, then ushered me into a conference room to show me a mock-up of his proposed newsletter. The copy where the articles should have been was some strange Latin writing, which Lazar said was a publishing industry convention for mock-ups. The only part that was legible was the name of the publication. “I’ve decided on the name,” he said. “It will be called New York Professional Responsibility Report.”
After some discussion about how to market the newsletter, we went to lunch and Lazar told me about his long and varied career. He had worked as a lawyer for many years as a founding partner of the highly regarded intellectual property firm of Cowan, Liebowitz & Latman, then spent some time in radio and other business pursuits. When I met him, he was involved in a number of publishing ventures (including the prolific works of his son, Steven Emanuel, author of the Emanuel Outlines and other study aids well known to law students everywhere). Lazar was also running The Highlands Company, the publisher of the Highlands Ability Battery, described on the Highlands website as “the gold standard among assessment tools measuring individual abilities.” I was impressed with Lazar’s work ethic, his wide ranging experience, and his confidence that NYPRR would be a success.
I signed on as Chief Editorial Advisor. My responsibilities were to suggest topics, to recruit authors, to write occasional articles myself, and to do some editing here and there. Lazar (with the able assistance of Kim Mumola and Chris O’Hara) would take care of everything else — dealing with authors, editing the articles, designing the layout, working with the printer, keeping track of subscriptions, handling the finances, and all of the other details necessary to compose and publish a viable and reliable newsletter.
The first issue of NYPRR appeared in April 1998, and the lead story was my article entitled, “Do I Have to Save Those Old Files?” I remember that article well because the first issue became a promotional issue, and Lazar distributed thousands of copies to New York lawyers as a way of acquainting them with NYPRR. For a few months, I was a kind of month-to-month tenant in the lead article space in NYPRR, but gradually NYPRR became a part of my life — a regular part of my monthly routine. Lazar was the driving force behind my dedication to NYPRR.
Toward the end of every month, Lazar would send me an email asking about my plans for the coming months. “What do you have up your sleeve for November?” or “What’s on your mind for the June issue?” he would write. Often, I called him in response to these emails and we would discuss some possibilities. I would suggest a topic or two and he would always approve, encouraging me to choose whichever topic I considered the most interesting. He gave me complete freedom to write about whatever caught my fancy. And he gave me complete editorial freedom to say whatever I wanted to say. He was a great believer in freedom of speech, and not once did he attempt to sway or censor my ideas.
But Lazar was not passive. He was an active but gentle editor. If he did not understand what I said, he would correct it, or raise a question in the margin. He also reflected a strong education in the fundamentals of grammar, catching and correcting all of my grammatical mistakes, and clarifying my meaning in the process.
Often, I would call Lazar to discuss a draft I had sent him. Did he think I was too harsh on the judges who had written the opinion that was the focus of my article? Was my criticism of the Rules of Professional Conduct fair? Did the article flow properly? Was my conclusion justified? He always gave me his candid opinion. That was part of his character. He was a keen observer, and said what he thought. But his criticism was always constructive. He had critical judgment, but he was not a critical person.
Given all of Lazar’s other active pursuits, he devoted a remarkable amount of time to NYPRR. He usually returned my initial draft within 24 hours—sometimes even the same day—and seldom took more than 48 hours. He also wrote dozens of articles himself. (See the excerpts from Lazar’s articles below.) And he recruited many talented outstanding legal ethics authors for NYPRR, including (among others) Ron Minkoff, Hal Lieberman, Bruce Green, Jeremy Feinberg, Stephen Gillers, and Sarah Diane McShea, all of whose tributes appear in this issue. Lazar also recruited the late Stephen Krane and the late Mary Daly to write many articles for NYPRR — and I have no doubt that they would have felt honored to write their own tributes to Lazar if they were still with us.
Despite all that he had to juggle — not only at NYPRR but also with his family and his many other personal and professional pursuits — Lazar was a stickler for punctuality. He published 163 issues of NYPRR over more than 13 years, and every one of them came out on time.
Lazar was also an innovator in continuing legal education. Around 2000, Lazar successfully applied to the New York State Continuing Legal Education Board for accreditation to offer CLE credit in the Ethics and Professionalism category to readers of NYPRR. Each month, Lazar wrote 20 questions to determine whether the test taker had been paying attention while reading the issue. Writing the questions was tricky. It was probably the most difficult part of publishing the newsletter. But Lazar produced those questions month after month after month —- approximately 3,000 questions over the life of the newsletter.
Finally, Lazar was a role model for living a busy and productive life and for focusing on the highest standards. He meant a great deal to me personally. I have just retired from teaching law and am beginning the second phase of my career. Lazar showed that a person can work productively long after the usual age for retirement, and can continue to invent and innovate and create. He also showed that professional responsibility never goes out of style. Of all of the things that he did after reaching his golden years, Lazar put his greatest professional energy into elevating the ethics of lawyers. When I think of Lazar, I think of the uplifting words of Justice Frankfurter in Schware v. Board of Bar Examiners, 353 U.S. 232 (1957):
One does not have to inhale the self-adulatory bombast of after-dinner speeches to affirm that all the interests of man that are comprised under the constitutional guarantees given to ‘life, liberty and property’ are in the professional keeping of lawyers… From a profession charged with such responsibilities there must be exacted those qualities of truth speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as ‘moral character.’
Lazar exemplified that moral character. It was a privilege to know and to work with him. I will miss him dearly.
— Roy Simon is a Distinguished Professor of Legal Ethics Emeritus and has just published the 2012 edition of Simon’s New York Rules of Professional Conduct Annotated (available from West).
My Father, Lazar Emanuel
By Steven Emanuel
My father Lazar Emanuel had an extraordinary life.
He was born in 1924 to Sephardic Jewish parents who had recently emigrated to New York from a town near Salonika. Salonika is today, of course, part of Greece, but was then under Turkish dominion. The language on which my father was raised was Ladino, essentially Spanish as it was spoken in 1492 when the Jews were expelled from Spain by Ferdinand and Isabella.
My dad was born and raised poor. He, his brother, his parents, his mother’s sister, and the sister’s daughter, all lived together in a 1-bedroom 1-bathroom apartment in the Bronx. And the one bathroom was not always available for humans, because my grandmother sometimes kept chickens in the bathtub. By the time my dad was in high school, the family was still so poor that my dad had just a single white shirt, which my grandmother washed every school night.
Lazar was always a brilliant student. He skipped two years of middle schooling, and then graduated from Dewitt Clinton High School in the Bronx in 1940, after having just barely turned 16. He was the valedictorian of the largest graduating class that Clinton ever had, over a thousand students. He then headed off to NYU, from which he hadn’t quite graduated when he was drafted in 1943. Because of his great talent for foreign languages, he was sent to the Army’s Japanese Language Training Center at the University of Michigan in Ann Arbor. There, he met the great love of his life, my mother Judy, whom he married in late 1944 when he was 20 and she was still 19. Their incredibly close marriage lasted until his death 67 years later, a pretty good run.
At the end of the war, in fall 1945, Lazar headed off with Judy to Harvard Law School. At Harvard, despite the GI bill, my parents struggled to make ends meet — he had a part time job teaching French at a local girls private school, and my mom took in laundry at the Harvard Co-op. My dad was disappointed not to make the Harvard Law Review, but his proudest accomplishment was an “A” in Labor Law from a very young Archibald Cox, later of Watergate Saturday Night Massacre fame.
After graduating from HLS in 1948, my dad started a New York City law firm with two friends, Marvin Cowan and Sidney Liebowitz. The firm was known as Cowan, Liebowitz and Emanuel; it today endures (indeed prospers) as Cowan, Liebowitz & Latman, with about 50 lawyers, most of whom practice Intellectual Property.
During the 1950s and 60s, my mom and dad adopted a total of five children. I was the oldest, born in 1950, followed by my twin sisters Leslie and Carole who were four years younger. Number 4 was a wonderful boy named Johnnie, who my parents knew before the adoption was a “blue baby” with a heart defect that would need to be corrected by surgery. Tragically, Johnnie died on the operating table at age 6. Undaunted, my parents then adopted David, who is 15 years my junior, and who turned out to be their wonderful caregiver during their later years. Adopting and raising five children from four different sets of birth parents is the kind of experience that teaches you to value human diversity, and not to expect that your children will or should be mini-replicas of yourself. My parents learned that lesson instinctively and instantly.
My dad enjoyed his years practicing law at Cowan Liebowitz, but he was not cut out to do that for the bulk of his career — he was too restless and entrepreneurial.
During the 1950s, he had represented several radio station owners, and by the early 60s he left the law firm to enter the radio business as a principal. Backed by private investors, he formed Communications Industries Corp, with which he acquired at one time or another 13 radio stations and one TV station, in markets like Newcastle PA, Youngstown OH and Poughkeepsie NY.
His last, biggest acquisition, was WJRZ, an AM station that he moved from Newark to Hackensack, NJ, in the mid-1960s in order to improve its signal coverage of the New York City market. New York City was then, as it is today, a tough radio market with dozens of competitors. To stand out, he needed to do something special.
That something special turned out to be country music — this most popular music type was featured on radio dials everywhere in America except New York Metro, and my dad became the man who brought Country to the big city. It was a tough go — as I was reminded just the other night by the lyrics of a New Year’s Eve Country song on a TV show broadcast from Los Angeles (I may be mangling the line slightly), “But when you find your way to New York City, they’ve never even heard of Conway Twitty.” (If you haven’t heard of Conway Twitty, he was a major country and western star of the 1960s and 70s.) But WJRZ prospered with the country format, and my dad was able to sell it on behalf of his investors to a large national broadcaster in 1969 for an impressive sum.
The sale of the final radio station led to my dad’s next business adventure. The station had a printing press and some pre-press equipment, which the new buyers didn’t want. He set the equipment up in the Teaneck, NJ, attic of a friend’s detached garage. This coincided with the end of my sophomore year at college, so I became a one-employee print shop, selling printing to local merchants by day, and running the presses at night. Apparently I must have made the printing industry look easy (which it wasn’t, and isn’t), because my dad decided to acquire a small local printer and turn it into a significant business, Garden State Press, in Teaneck. I’m not sure how well dad’s being in the printing business worked for him, but it worked great for me. I followed dad to Harvard Law School in 1974, and began publishing the Emanuel Law Outlines study aids from my dorm room. Dad did all the printing, and as the business grew, he ran the law outline business operations as an adjunct to the printing company, while I finished law school and practiced law for a couple of years. Eventually, in 1987, after the law outline publishing business continued to expand, he closed the printing business and came to work for me full-time.
He served as my right-hand man until we sold the business to the international publisher Wolters-Kluwer in 2001. His greatest single contribution to the business was to work out our 1995 acquisition of the Law in a Flash legal-flash-card publishing business, which was (however improbable it may seem to those of you who went to law school a while ago) a highly-lucrative, seven-figure business.
Following the 2001 sale of the publishing business, my dad embarked on his final two business ventures, both in publishing. One was the co-ownership of a company called Highlands Company that owns and sells a proprietary abilities test, whose function is to help people figure out what their natural talents are. That business continues today under the able leadership of Kim Mumola, who had helped my dad run the business for the last 10 years.
The other business was, of course, the NYPRR newsletter. With my dad as publisher and Roy Simon of Hofstra Law School as Chief Editorial Advisor and monthly contributor, NYPRR produced monthly issues from April 1998 through November 2011, a total of 163 issues in all. The newsletter was the great business passion of my dad’s later years. Even when he was hospitalized in the fall of 2011 at Westchester Medical Center for the subdural hematoma that would soon kill him, he was attentive to the details of the final issue, proofing and tweaking the marketing copy for the upcoming issue.
Several adjectives describe Lazar. One, of course, is “brilliant.” He was deeply knowledgeable on a wide variety of topics, from literature to politics to business and economics. Any lawyer who read any of his NYPRR articles knows the penetrating analysis, and deep passion, he brought to issues of the lawyer’s professional responsibilities.
Another term that comes to mind is “hardworking.” In the 1950s, his law partner Marvin Cowan used to say “Lazar will become the first lawyer in Manhattan to earn $1 million a year, billed at $7 an hour.” Well into his 80s, at a time when nearly all his law school classmates had retired, he was not only running the two publishing businesses, but was still representing private clients in important matters.
The final, and most central, adjective I would use to describe him is “loving.” And I don’t just mean loving of family. He was that, of course: I’ve never known a man as devoted to his wife, his children, and his extended family as my dad; every day of his life until the end, he put out an intense effort to help every family member in every way he could. But my dad’s capacity for love and caring extended to virtually everyone he knew. Friends, customers, suppliers, every employee of any of the businesses he ran — all of them could count on him to ask, “So how are you?” and know that he really wanted to know, and would help in any way he could. Plus, you knew you could confide in him about anything. You could take as much time as you wanted, and he wouldn’t fidget or tell you to hurry up. After he heard all the details (including ones he would extract under lawyerly cross-examination), you would get great advice, delivered in a non-judgmental way and coupled with great compassion. As his nephew said to me recently, “You could talk to him about anything, and when he was listening to you, you felt that nobody else in the world existed.”
We will all miss him forever.
— Steven Emanuel, a lawyer by training, is the founder and principal author of the Emanuel Law Outlines series of law-school study aids, now published by Wolters Kluwer Law & Business.
Lazar Emanuel: Friend, Colleague, and Fellow Ethics Enthusiast
By Jeremy R. Feinberg
With the passing of Lazar Emanuel, all of us in the New York professional responsibility community have lost a friend, colleague and fellow ethics enthusiast. It is certainly fitting to memorialize him in the pages of his own beloved New York Professional Responsibility Report (NYPRR), precisely because of how much this publication meant to him. That Lazar is being memorialized here is also a great reminder of everything he contributed to the ethics community.
Lazar convinced some of the best and most learned ethicists in New York (as well as new voices such as mine) to contribute writings packed with practical and theoretical knowledge on a monthly basis. Where else could you find, over the course of several issues, the latest thinking of great ethics minds like Stephen Gillers, Roy Simon, Bruce Green, Steve Krane and Mary Daly, just to name a few? And when Lazar had an ethics issue on his mind — which was often — he contributed personally as well.
And yet for all of the practical and scholarly writing that found its way into the NYPRR, I will always be most impressed by (and appreciative of) the way Lazar filled an important need of the Bar. He successfully petitioned the New York State CLE Board to allow a self-assessment test at the end of each issue, with the reward of an elusive half credit of ethics CLE for successfully completing the test. This was a stroke of genius. Surely many readers were able to eke out their last few ethics CLE credits as a result of this clever addition.
But it will be for his personal touch as an editor that I will remember Lazar the most. He gave me my first real opportunity to regularly write about ethics issues for a broader readership. And in so doing, he proved to be the kindest, most helpful editor a writer could ask for. He was always willing to listen and work hard with me to generate a better finished product. I will miss our back-and-forth communications over my article-writing. Eighteen submissions over four years may be as prolific as I ever can be as a writer for an outside publication — and I am forever grateful that Lazar gave me the chance.
I will miss you, friend.
— Jeremy R. Feinberg is the Statewide Special Counsel for Ethics at New York’s Office of Court Administration. He also serves as one of the staff counsel to the Advisory Committee on Judicial Ethics.
A Man Who Made Lawyers More Ethical
By Bruce Green
It is not surprising that, as a legal publisher, Lazar Emanuel contributed to making lawyers more knowledgeable and up-to-date on the law, but one of his most special publications also made us more ethical.
Nearly 14 years ago, he originated a truly unique publication, the New York Professional Responsibility Report, designed to keep New York lawyers current on developments in the field of legal ethics. Brilliantly, he included a self-assessment test for experienced lawyers to take for Continuing Legal Education credit. As far as I know, no other state has anything comparable. Under Professor Roy Simon’s editorial direction, the publication has helped better New York lawyers in many ways, sending a message that ethics and professionalism are often challenging and always worthy of serious thought and discussion. Lazar’s passing is a loss for the profession, which will remember him with appreciation.
— Professor Bruce A. Green is the Louis Stein Professor at Fordham Law School. He is a member and past chair of the NYSBA’s ethics committee and a member of the NYSBA’s Committee on Standards of Attorney Conduct, as well as a member of the ABA’s ethics committee and a former member of the City Bar’s ethics committee.
He Treated Others with Respect
By Ronald C. Minkoff
When I shared my sadness over Lazar’s passing with one of my colleagues, he responded: “That guy was always easy to deal with. Old school.” By that, he meant “old school” in a good way, somebody who treated others with respect, who knew how to prod gently to get what he wanted, and who viewed lawyers (and the law itself) as a profession, not a business. As publisher, editor, writer and chief-cook-and-bottlewasher of NYPRR, he provided professional responsibility lawyers with more than just a newsletter. Lazar gave us a place to formulate our thoughts, exchange ideas, learn new things, and market our practices — a place to grow as lawyers, professionals and ethics experts. For me, he was a thoughtful and gentle editor who always made my work better. I will miss his warmth, his wit and his generous support. May he rest in peace.
— Ronald C. Minkoff is a partner in the Litigation Group and Head of the Professional Responsibility Group at Frankfurt Kurnit Klein & Selz, P.C. Mr. Minkoff was recently named a fellow of Litigation Counsel of America and is an Adjunct Professor of Professional Responsibility at NYU School of Law.
He Was Energetic, Intelligent, and Wholly Decent
By Hal Lieberman
I was very saddened to hear that Lazar Emanuel passed away. Lazar was not a social acquaintance, but I knew and respected him professionally for many years. Energetic, highly intelligent, wholly decent, and a self-taught ethicist, Lazar almost single-handedly—I say “almost,” because I know that Roy Simon was a guiding force and collaborator on the project from the outset — instituted and ran NYPRR for more than 13 years. During that time, he would frequently ask me to contribute an article, which I grudgingly did on occasion, but only because it was hard to say “no” to Lazar. When too few of us were able to commit the time and effort required to sustain the journal, Roy and Lazar somehow kept it going, to the great benefit of the entire ethics (and legal) community.
I will always remember the last, sad communication I had with Lazar, wherein, because he was no longer physically or financially able to carry on, he asked whether I had any ideas about how this enterprise could be saved. Regrettably, I had none. Nonetheless, NYPRR lives on, along with my very fond memories of Lazar, as an excellent model of what great lawyering, and great legal writing, is about.
— Hal R. Lieberman, former Chief Counsel to the Departmental Disciplinary Committee for the First Judicial Department, is the partner in charge of the New York office of Hinshaw & Culbertson LLP.
Gentleman, Scholar, Editor, Wizard
By Sarah Diane McShea
Lazar Emanuel was truly a gentleman and a scholar. He founded the New York Professional Responsibility Report nearly 14 years ago and, together with Hofstra Law Professor Roy D. Simon, assiduously cultivated a deep roster of contributors, academics and ethics practitioners.
In the beginning, like a modern day wizard, Lazar worked the phones, sometimes on a daily basis, persuading busy lawyers and law professors to write articles for NYPRR. He was gentle and encouraging with his authors. “Can you get me a piece for next month’s edition?” was a typical conversation opener. He was persistent when deadlines loomed and an avid and highly effective editor.
A man of many talents and highly varied interests, Lazar was intent on creating a high-caliber, “must have” publication for New York lawyers interested in the law of lawyering. And, largely because of his indefatigable charm and determination, he succeeded brilliantly.
NYPRR, long an insider’s publication, became required reading for ethics lawyers, among others, and has been consistently interesting, topical and substantive. Along with many other colleagues, I will greatly miss Lazar Emanuel, whose sprightly manner, gentle good humor, and distinguished presence are rarely equaled.
— Sarah Diane McShea represents lawyers in professional responsibility and disciplinary matters. She is a Past President of the Association of Professional Responsibility Lawyers, and is an Adjunct Professor at Fordham Law School.
He Was Absolutely Devoted to His Wife and Family
By Jonathan D. Sands
I first met Lazar Emanuel in 2005 when I was looking to relocate my office. While the space he showed me in his suite in Larchmont was perfect for my solo practice, Lazar himself was the overriding reason I decided to move there.
We spent at least an hour talking when we first met and perhaps only five minutes was devoted to the space. Lazar had the rare ability to speak with anyone about anything, and to make those around him feel like they were the most important people in the world. Lazar was the embodiment of the qualities we so admire. He was fiercely loyal to his family, friends, colleagues, clients and employees. His intellectual curiosity was non-stop, as was his entrepreneurial interest. His ability to grasp complex aspects of legal ethics and technology, and to then explain them in just a few words was, in short, extraordinary.
He was also quite the diplomat. No matter how much he disagreed with someone’s beliefs, he never dismissed them out of hand. Yet despite Lazar’s numerous successes in law, ethics, broadcasting, and publishing (to name just a few), the single quality that best defined Lazar was his absolute devotion to his wife Judy and their family.
Someone like Lazar does not come around often. We were blessed to have had him in our lives, and are blessed that his spirit lives on in each of us his life touched.
— Jonathan D. Sands of Law Offices of Jonathan D. Sands
He Got Things Done with Kindnesss and Concern for Others
By Carol Ziegler
Everything (OK, maybe only 95%) I need to know about what is happening in New York’s professional responsibility world I find in the informative and interesting articles written by Professor Roy Simon, and by Lazar Emanuel, of blessed memory.
Naturally, I did not want to miss an issue. But last year, as my subscription was about to run out, I couldn’t quickly lay my hands on the automatic renewal number or some such, so I called NYPRR’s office. The person who answered the phone told me she would connect me to the person who could help with that. I was connected to a man who identified himself as Lazar Emanuel. I immediately apologized for wasting his time with this, and told him I could call back later in the day when someone else could take care of it. Mr. Emanuel responded that it was his pleasure to help; it was no problem, and he didn’t want to waste my time by having me call back. In a few moments, I had paid, I had renewed, and, most importantly, I was reminded that there are still people in this world who just get it done, and get it done with kindness and concern for others.
We read, write and teach about the complicated world of the law and rules governing lawyers. We practice law. But in those moments, more than a subscription was renewed. I was reminded of the moral aspirations that brought me law school many decades ago and to the practice and then teaching of law. My teacher was Lazar Emanuel. May his memory be for a blessing.
— Carol L. Ziegler is an Adjunct Professor of Law at Columbia Law School
Lazar Emanuel on Professional Responsibility: A Brief Sampler
Roy Simon’s note: Lazar Emanuel wrote more than 200 articles for NYPRR. He covered the full spectrum of topics regarding professional responsibility in New York, always with clarity, keen insight, and practical wisdom. In this section we have collected excerpts from a small sampling of his many articles. They remind us how much we have lost with Lazar’s passing.
NYSBA Committee Urges End to Mandatory Retirement (March 2007)
[Roy Simon’s note: Lazar was an avid reader and kept abreast of every new development in the New York legal ethics world. The following article is especially fitting for this issue because Lazar never retired and remained vibrant and productive until his death at age 87.]
Who among us does not know personally a number of lawyers in their 70s or 80s who complain bitterly about their forced retirement from a law firm to which they devoted a lifetime of loyalty and dedication?
Now, a special committee created by NYSBA President Mark H. Alcott has concluded that mandatory retirement of older lawyers (gray lawyers) is “unacceptable,” “unwarranted,” and “unwise.” “A lawyer’s age, standing alone, is not an appropriate criterion for determining professional capacity or employment status.” The committee was chaired by Mark C. Zauderer of Flemming Zulack Williamson Zauderer LLP …
The committee was asked to study and report on all practices in the legal profession that disadvantage lawyers on account of age, including hiring and firing practices. However, responding to the wide range and complexity of the prevailing issues, it decided to limit its report to the issue of mandatory retirement of law firm partners. Although the report specifically avoids advising whether mandatory retirement practices in law firms are legally enforceable — an issue that will be decided by the courts — it does discuss “the extensive legal developments” that have taken place in the area of age discrimination.
The legal profession has undergone many dramatic changes in the years since World War II. Several factors have contributed to make the issue of retirement more urgent: (1) the median age of practicing lawyers has increased from a median of 46 in the year 1960 to the point at which, by the year 2018, there will be a large number of lawyers who, “within a narrow span of years, will all reach the age at which most Americans retire;” (2) the number of lawyers in the U.S. has increased from 300,000 in 1960 to more than one million; (3) the number of lawyers in most firms has grown exponentially; (4) the practice has become more demanding, both physically and intellectually; and (5) changes in social attitudes have created a greater variety of retirement expectations and goals.
A study by the American Bar Foundation reported by the National Law Journal in May, 2005 disclosed the following:
1. 37% of all law firms have a mandatory retirement age;
2. 57% of law firms with more than 100 lawyers have a mandatory retirement age;
3. only 13% of firms with fewer than 10 lawyers have a mandatory retirement age;
4. the common age for mandatory retirement is 70;
5. 57 is the average age for early retirement by lawyers. Somewhat surprisingly, the committee reported that law firms with fewer than 100 lawyers do not usually have written partnership agreements, “or if they do have one, it does not include retirement provisions.” In firms with written provisions, retirement is linked to the lawyer’s age, usually between 65 and 70. The provisions usually fall into two categories. In one, the lawyer must give up his equity interest at the mandated age; in the other, a lawyer who reaches the prescribed age remains in the partnership, but for a limited term and, usually, at a declining rate of compensation; at the end of the term, the lawyer leaves the partnership.
A lawyer who retires can expect to receive a variety of treatments. She is sometimes permitted to continue working as a non-equity “partner” or “special counsel,” either without pay or at an hourly rate. In some firms, she is not permitted to remain at all. Those firms which permit the lawyer to remain sometimes provide the lawyer with an office and secretary.
Many firms condition non-vested monetary retirement payments on the retired partner’s agreement not to compete with the firm by practicing with another law firm; in most cases, the condition does not extend to employment which is not law-related, and, even, to employment as corporate general counsel.
The issues surrounding restrictive covenants affecting lawyers are still in flux. They are affected by provisions in the New York Code of Professional Responsibility and by federal and state statutes and regulations prohibiting age discrimination. Generally, the central question is: is a law partner an “employee” of the firm as that term is defined in the statutes? …
In rejecting the concept of mandatory retirement, the special committee reached the following consensus:
• age-based retirement is inconsistent with generally accepted employment practices in the U.S.;
• the practice compels the law firm to lose the benefit of productive partners simply because of their age;
• firms which make a more substantive, individualized and qualitative analysis of a partner’s performance, instead of relying solely on her age, find that this is an important factor in the firm’s well being.
• many lawyers achieve their greatest value to clients as they age — their years of experience give them a perspective and judgment which cannot be matched by younger lawyers.
Personal Reassessment In a Hardscrabble Time (April 2009)
[Roy Simon’s note: As noted in the tributes above, Lazar was a man of many talents who was involved in many businesses. He was also constantly reassessing himself. Appropriately, one of his main business interests in later life was The Highlands Company, the publisher and sole distributor of the Highlands Ability Battery, an objective assessment of individual abilities.]
Hundreds of lawyers are suffering the anguish and trauma of job loss or lay-off. If you’re among them, you are justifiably angry and frustrated. Caught in a swirl of events you did not cause or shape, you are searching for ways to regain your footing and your pride. What’s the best way to fight your way back? Back to school to train for a related career? Cram course in a new career? Network? Invest in a tutored resume? Register with a professional employment service?
May I suggest another step first? Why not pause long enough to take stock of yourself?
If you’ve never had an assessment of your abilities, or your personal style, or your interests and values — especially under the supervision of a trained career coach or counselor — you will be pleasantly surprised and invigorated by the results. You may even find your way to a new and more satisfying career that may or may not build on your legal training. …
Some assessments measure the style with which you respond to people and work environments. If you’re a specialist, for example, you will prefer to work alone and develop your “own thing.” If you’re a generalist, on the other hand, you will prefer to work as part of a group. If you’re an extrovert, you will be gregarious, outgoing and uninhibited; if an introvert, you may be introspective, reserved or even distant. Again, a good assessment can tell you how these qualities combine in you. There are many possible and subtle combinations on the generalist-specialist scale. You will find it helpful to know where you fit. The practice of law draws on all possible combinations on the scale, but in different ways. An introvert/specialist may be drawn to tax work, for example, while an extrovert/generalist will prefer the role of firm rainmaker and client manager. …
However you go about it, a personal reassessment may be vital at this point in your life when everything appears so grim and challenging. For an investment of about $500, you can purchase every assessment you need and discuss your results with a coach or counselor trained in interpreting assessment results. It’s the best investment you can make at this turning point in your life, and it gives you the tools to make a proactive decision toward a fulfilling and satisfying career.
A Lawyer’s Obligation to Disclose His Own Mistake (March 2004)
[Roy Simon’s note: As a founding partner of the firm today known as Cowan, Liebowitz & Latman — originally called Cowan, Liebowitz & Emanuel — Lazar fully understood the heavy weight of a lawyer’s duties of honesty and candor to clients, even when the lawyer’s own interests might suffer. This article provides a good example of Lazar’s insistence that client interests come first.]
During the NYSBA meetings in New York City last month, I participated in a panel of lawyers which considered, among other issues, the obligations of a lawyer to disclose to his client a mistake or error which may give rise to the client’s claim of malpractice. I was impressed by the fact that the issue seemed not even to occur to the majority of lawyers present, although it was clearly raised by the fact patterns with which they were presented. Specifically, does a lawyer have the obligation to notify his own client of a prejudicial mistake? And, following the disclosure, may he continue to represent the client in the matter? Is the client’s consent relevant to the continued representation? These questions were considered by the NYSBA Committee on Professional Ethics in Opinion 734 (11/01/00).
The Opinion was prompted by an inquiry of the Legal Aid Society. The Committee determined that the Society was governed by the same ethical standards as any law firm.
When a lawyer makes a prejudicial error, the spectra of a malpractice claim looms immediately, and the lawyer is usually the first to know it. Obviously, his first reaction is to consider his own potential liability. The interests of the client may suddenly seem less important. …
If the lawyer’s error is one which cannot be remedied, the conflict between the lawyer and his client is probably also incapable of resolution. The lawyer’s principal interest will consist of avoiding, or lessening the impact of, a suit for malpractice and/or a disciplinary complaint. This interest encompasses all four of the interests contemplated by DR 5-101(A) [essentially the same as today’s Rule 1.7(a) (2)] — financial, business, property and personal.
The primary question, therefore, is: how substantial is the error. Can it be remedied without injury to the client? If the mistake can be remedied, the lawyer is still required to disclose the mistake, but he may then proceed to remedy it and to continue the representation. The Committee said:
Of course, not every possible error creates a possible claim for malpractice. Some errors can be corrected during the course of the representation. Others are not particularly harmful to the client’s cause. In some cases, it may be questionable whether the lawyer acted erroneously at all. Therefore, when a lawyer makes a mistake in the representation of a client, the likelihood that the lawyer’s representation will be affected adversely because of the lawyer’s interest in avoiding civil liability will depend upon all the relevant facts.
But some mistakes are irremediable. The most obvious of these is the failure to comply with a controlling statute of limitations or other time-sensitive mandate. …
The only real issue for the lawyer is: How serious is my mistake? Can I fairly and reasonably suggest to the client when I disclose my mistake that I can remedy it without any injury to him? In any event, disclosure is the only wise course. It’s for the client to decide what will follow.
An Overall View of the Litigation Funding Industry (Feb. 2011)
[Roy Simon’s note: Lazar was deeply troubled by the litigation funding industry, especially by companies that provide non-recourse loans to personal injury plaintiffs at astronomical interest rates. Lazar wrote three separate articles about litigation funding — “Litigation Funding and The Law of Champerty” (July 2010), “A Review of the City Bar’s Opinion on Litigation Financing” (October 2011), and the article that follows, which examines and amplifies a New York Times article entitled “The Steep Price of Funding.”]
Because the lender faces the possibility that it will recover nothing, litigation loans come at steep prices. Arguments to support these prices are the backbone of the litigation financing industry. The New York Times expresses it this way:
Companies…say that they must charge high prices because betting on law suits is very risky. Borrowers can lose, or win, less than expected, or cases can simply drag on, delaying payment until the profit is drained from the investment.
To fortify its position, the industry has started volunteering to be regulated — but on its own terms. The companies, and lawyers who support the industry, have lobbied state legislatures to establish rules like licensing and disclosure requirements, but also to make clear that some rules, like price caps, do not apply.
We of the New York Bar have not ventured into the fray to understand and assess the benefits and detriments of litigation funding. In the meantime, other states have attempted to show us the way. In Ohio, for example, the funding industry faced an adverse decision in Rancman v. Interim Settlement Funding Corp., 99 Ohio St. 3d 121 (2003). The Supreme Court of Ohio held:
We are asked to address whether a nonrecourse advance of funds secured solely by an interest in a pending lawsuit and at a contracted return exceeding 180 percent per year is permissible under Ohio law. We hold that it is not. Such an agreement constitutes champerty and maintenance and thus is void under Ohio law.
The Court reasoned:
Equally troubling is a champertor’s earning a handsome profit by speculating in a lawsuit and by potentially manipulating a party to the suit. …However, a lawsuit is not an investment vehicle. Speculating in lawsuits is prohibited by Ohio law. An intermeddler is not permitted to gorge upon the fruits of litigation.
Ultimately, the Ohio legislature acted to soften the impact of the Rancman decision. In 2008, it passed HB 248, a bill stating that litigation financing could proceed, but that the contract with the lender had to include the following: the dollar amount of the advance; the total amount to be repaid in each six month interval; the annual percentage rate; a five day right-to-cancel clause; and an acknowledgment by the litigant’s attorney that he had reviewed the contract. Similar legislation was passed in Connecticut in 2008 and in Maine in 2009.
If other states can move to regulate the litigation finance business, why can’t we? Why do we have to rely instead on an exchange of confusing questions and answers by our Courts?
Commentary: Lawyer Advertising — A Simpler Way (Nov. 2006)
[Roy Simon’s note: In June of 2006, the Presiding Justices of the Appellate Divisions circulated proposed amendments to the rules governing lawyer advertising and solicitation. As usual, Lazar displayed common sense and a feel for the rigorous demands of day-to-day law practice.]
We offer our contribution to the stream of comments which have undoubtedly been directed to the Presiding Justices of the Appellate Divisions on the proposed new rules governing lawyer advertising and solicitation. Generally, we suggest the much more simple approach of the American Bar Association (ABA), especially at this time when COSAC has proposed adoption of the format and much of the content of the ABA Model Rules.
A system for controlling lawyer advertising should be as clear and precise as possible. It should concentrate on the lawyer’s commitment to truth and integrity. What more emphatic statement of this commitment can there be than Model Rule 7.1?
Communications Concerning a Lawyer’s Services
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
The Rule revolves around the word “communication”, a simple umbrella covering anything written or spoken. Use of this word makes superfluous the three new definitions proposed by the Judges for the terms “Advertisement”, “Solicitation”, and “Computer-accessed communication”. …
With respect to those proposals of the Judges regarding labeling, filing and record keeping — we think these are unnecessarily burdensome. So long as the public is aware that the communication is in fact an advertisement, and the facts in the communication are true and not misleading, why require anything more than the word “Advertisement” on the screen — either on TV or on a computer — or on the first page of any written communication? Any why designate it “Attorney Advertising” or “an advertisement for legal services”?
Why not simply “Advertisement”? No other advertiser is required to remind the reader or the viewer that what he’s seeing or hearing is an advertisement. The content tells the story. …
DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.
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