Yearly Archives: 2018

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Sexual Misconduct by New York’s Attorney General Leads to His Resignation

Who will watch the Watchers?  A champion of “women’s rights” NY’s AG Schneiderman resigns amidst credible allegations he was abusive, violent and downright disgraceful.  Women have come forward with allegations of his serious misconduct, including slapping a woman, threatening them with his power, excessive drinking and corruption. A news story alleging Eric Schneiderman, New York’s attorney general, choked and slapped women he was involved in relationships with was posted shortly before 7 p.m. Monday. Less than three hours later, after a flurry of calls for his resignation, Schneiderman did just that, effective end of business on Tuesday.

The resignation comes on May 8th just a day prior on May 7, 2018, New York Governor Andrew Coumo asked for Schneiderman’s resignation.

Schneiderman resigned his 8-year post as New York attorney general on Monday evening, just hours after the New Yorker story broke.

Four Women Accuse New York’s Attorney General of Physical Abuse

Eric Schneiderman has raised his profile as a voice against sexual misconduct. Now, after suing Harvey Weinstein, he faces a #MeToo reckoning of his own.

https://www.newyorker.com/news/news-desk/four-women-accuse-new-yorks-attorney-general-of-physical-abuse

Schneiderman was elected to the New York State Senate in 1998, and served for twelve years. He wrote many laws, including one that created specific penalties for strangulation. He introduced the bill in 2010, after chairing a committee that investigated domestic-violence charges against the former state senator Hiram Monserrate, a Democrat, who was expelled from the legislature after having been convicted of assaulting his girlfriend. During the hearings, the legislators learned that New York State imposed no specific criminal penalty for choking, even though it is a common prelude to domestic-violence homicides. Not only did Schneiderman’s bill make life-threatening strangulation a grave crime; it also criminalized less serious cases involving “an intent to impede breathing” as misdemeanors punishable by up to a year in prison. “I’m just sorry it took us so long in New York State to do this,” Schneiderman declared at the time. “I think this will save a lot of lives.”

Jennifer Friedman, a legal expert on domestic violence, says that she cannot square Schneiderman’s public and private behavior. Anyone knowledgeable about intimate-partner violence, she says, knows that choking is “a known lethality indicator.” She adds, “I cannot fathom that someone who drafted the legislation on strangulation is unfamiliar with such concepts.” She also says, “A slap is not just a slap—it reverberates through the rest of the relationship, making her afraid of setting him off.” She adds, “People aren’t usually prosecuted for it, but, in the state of New York, slapping is assault when it results in pain or physical injury.”

In the summer of 2016, the attorney general may have crossed this line again. He went to a party in the Hamptons, where he drank heavily, and invited another guest—a woman he’d known for some time—to join him at an after-party. An accomplished Ivy League-educated lawyer with government experience, she had worked closely with his office in the past, and supported him politically. She says that she agreed to let a man in Schneiderman’s security detail drive them to the next destination. But, when they arrived at the house, there was no party; it was where Schneiderman was staying. The security officer left the property.

The lawyer and Schneiderman began making out, but he said things that repelled her. He told the woman, a divorced mother, that professional women with big jobs and children had so many decisions to make that, when it came to sex, they secretly wanted men to take charge. She recalls him saying, “Yeah, you act a certain way and look a certain way, but I know that at heart you are a dirty little slut. You want to be my whore.” He became more sexually aggressive, but she was repulsed by his talk, and pulled away from him. She says that “suddenly—at least, in my mind’s eye—he drew back, and there was a moment where I was, like, ‘What’s happening?’ ” Then, she recalls, “He slapped me across the face hard, twice,” adding, “I was stunned.”

Schneiderman hit her so hard, she says, that the blow left a red handprint. “What the fuck did you just do?” she screamed, and started to sob. “I couldn’t believe it,” she recalls. “For a split second, I was scared.” She notes that, in all her years of dating, she has never been in a situation like the one with Schneiderman. “He just really smacked me,” she says.

When she told him that she wanted to leave, she recalls, he started to “freak out,” saying that he’d misjudged her. “You’d really be surprised,” he claimed. “A lot of women like it. They don’t always think they like it, but then they do, and they ask for more.” She again demanded to be taken home. They got into his car, and it quickly became apparent how intoxicated he was. As he drove, weaving along back roads, she was terrified that he’d kill not just her but another driver. She says that Schneiderman “broke the law at least once that night.” (“This is untrue,” Schneiderman’s spokesperson said.)

The next day, she told two friends, and sent them a photograph of the mark on her face. (Both women corroborate this.) Another photograph of the lawyer, taken later that day at a family birthday party, shows faint raised marks splayed on her cheek. One of the friends says of Schneiderman, “He seemed not to know what the word ‘consent’ means.”

Given the woman’s prominence in the legal sphere, Schneiderman’s actions had exposed him to tremendous risk. Yet she took no official action against him. “Now that I know it’s part of a pattern, I think, God, I should have reported it,” she says. “But, back then, I believed that it was a one-time incident. And I thought, He’s a good attorney general, he’s doing good things. I didn’t want to jeopardize that.” She notes that he did not hit her again, after she protested. Nevertheless, she says of the assault, “I knew it was wrong,” adding, “Our top law officer, this guy with a platform for women’s rights, just smacked away so much of what I thought he stood for.”

Berlingieri Law, PLLC, Founder Christopher Berlingieri Earns Avvo Clients Choice 2018 – Award

Berlingieri Law, PLLC, Founder Christopher Berlingieri earns Avvo Clients Choice 2018 – Award.

 
 5 STAR 2018 CLIENT REVEIWS

Chris did an excellent job fighting for my wrongful termination case and appreciate his professionalism during the entire process. I fully recommend Chris for future legal work
Fought and won my case with a substantial settlement, was very fair with his compensation and was clearly invested in the success of the case.

He did everything for me! Very nice guy and did everything I had hoped for!

=

 

 

 

 

 

 

 

 

 

 


Attorney Client Privilege

Attorney Client privilege in New York and Federal Courts – the client holds the privilege. Attorney cannot disclose confidential information as directed by the client.   Employment lawyers at Berlingieri Law, PLLC holds attorney client privilege as a top priority and treats your personal confidential information with the needed level of care.

Recent events of the politically motivated raid of the President of the United State’s personal lawyer’s New York City office reminds us that“the privilege of confidential communication between client and attorney should not only be liberally construed, but must be regarded as sacred.”

 

Generally
1. FRE 502 must be applied by all federal courts in all federal court
proceedings.

2. FRE 502 applies to communications and information that are subject
to the “attorney-client privilege,” as well as the “work-product
protection.” Thus, it does not change or otherwise alter federal or
state law concerning whether the communications and information are
privileged in the first instance.

3. FRE 502 also requires a state court to follow the Rule’s standards if
the disclosure of a privileged communication occurred in a federal
proceeding or to a federal office or agency, and discovery of that
communication is sought in the state court proceeding. (FRE 502[b]).
4. Where the disclosure of the communication is made in a state

proceeding and is not subject to a state court order concerning waiver
and discovery of that communication is sought in a subsequent federal
proceeding, the earlier disclosure is not treated as a waiver in the
federal proceeding if the standard for waiver of either the relevant
state rule or FRE 502(c) would grant protection.

5. FRE 502 has no application to disclosures that occur solely at the state
level.

 

 

Its Application

The privilege applies only if (1) the asserted holder of the
privilege is or sought to become a client; (2) the person to
whom the communication was made (a) is a member of
the bar of a court, or his subordinate and (b) in connection
with this communication is acting as a lawyer; (3) the
communication relates to a fact of which the attorney was
informed (a) by his client (b) without the presence of
strangers (c) for the purpose of securing primarily either
(i) an opinion on law or (ii) legal services or (iii)
assistance in some legal proceeding, and not (d) for the
purpose of committing a crime or tort; and (4) the
privilege has been (a) claimed and (b) not waived by the
client.

NY State Law

THE PRIVILEGE
A. CPLR 4503(a)(1)

1. CPLR 4503(a)(1) codifies the attorney-client privilege. It provides:
Unless the client waives the privilege, an attorney or his or her
employee, or any person who obtains without the knowledge of
the client evidence of a confidential communication made
between the attorney or his or her employee and the client in the
course of professional employment, shall not disclose, or be
allowed to disclose such communication, nor shall the client be
compelled to disclose such communication, in any action,
disciplinary trial or hearing, or administrative action,
proceeding or hearing conducted by or on behalf of any state,
municipal or local governmental agency or by the legislature or
any committee or body thereof.

 

Evidence of any such communication obtained by any such person, and evidence
resulting therefrom, shall not be disclosed by any state,
municipal or local governmental agency or by the legislature or
any committee or body thereof. The relationship of an attorney
and client shall exist between a professional service corporation
organized under article fifteen of the business corporation law
to practice as an attorney and counselor-at-law and the clients to
whom it renders legal services.

 

2. CPLR 4503(a(2) abolishes “fiduciary exception” to the attorney client
privilege regarding communications between counsel and
personal representative of a decedent’s estate.
3. CPLR 4503(b) creates a statutory exception to the privilege where the
confidential communication between a deceased client and the client’s
attorney in issue involved the preparation, execution, or revocation of
any will of that client or other relevant instrument.

 

Clients’ Guide to Attorney-Client Privilege

Most are aware that communications between an individual and his attorney are “privileged”, but few know when and to what the privilege applies, or how it can be lost.  Given how important the privilege is, and how damaging the implications of its loss can be, a client with only a little knowledge of attorney client privilege can be a dangerous thing.

In order to provide some understanding of these issues, this article will explain what this privilege is, how it can be lost, and finally some principles a client should keep in mind about attorney-client privilege when interacting with its attorney.

What is the privilege?

Attorney client privilege is one of the oldest, and most important, privileges in law.  The privilege is established in all fifty states and in the “common law” of the United States.  In fact, a California court has held that “the privilege of confidential communication between client and attorney should not only be liberally construed, but must be regarded as sacred”.  The United States Supreme Court has explained that the privilege is essential to permit the “full and frank” disclosure of information by a client to its attorney, without which an attorney cannot provide considered and accurate advice to the client.

The client– and only the client – holds the privilege and the client alone may decide whether the privileged communications may be disclosed.  Importantly, no matter how compelling the public interest is in the information, a court cannot order the disclosure of the privileged communications.  In fact, the privilege even survives the death of the client.

The privilege is broad and is not subject to any weighing of interests once it attaches.  Given the breadth and scope of the privilege, however, certain conditions must be present when the communications are made in order for the privilege to attach.   First, the “privilege holder” must be either a client of the attorney, or must have made the disclosures when seeking representation of the attorney.  Absent such a relationship, the communications are not privileged.

Second, the person to whom the communication is made must be an attorney, who is acting as an attorney at the time of the communication.  While this seems straightforward, the application of the privilege is not always clear.  For example, the fact that a person is a licensed attorney may not by itself satisfy this condition if the person is acting in another role, for example as a corporate officer.  Similarly, in some countries in Europe “in-house counsel” are not considered attorneys for the purpose of privilege, so even communications to corporate counsel may not be privileged.

Finally, the purpose of the communication must be to seek legal advice.  While most applications of this condition are clear, a client must understand that communications are not necessarily privileged if they are not part of seeking legal advice, such as recounting basic facts that were not otherwise confidential, scheduling matters, etc.  Further, if the communication would not otherwise be privileged, the client and attorney cannot make it privileged simply by communicating the information to each other.

How is the privilege lost?

Once the privilege exists, the client and his counsel must make certain not to waive the privilege and invalidate it.  The easiest way for the client to lose the privilege is by disclosing it to someone other than the attorney or persons working on the attorney’s behalf –such as other attorneys, paralegals, etc.

While the most obvious ways of making such a disclosure is clear (speaking about it in public, providing the information to a third party, posting it on Facebook), other waivers are not so obvious.  For example, some clients will communicate with counsel through texts or emails from their employer’s company account, even if the subject of the representation does not relate to their employer.  As most companies expressly regard employees’ company emails and texts as company property, such communication will not be regarded as a private, confidential communication and, therefore, will not meet the standard for attorney client privilege.

Similarly, clients should not forward or discuss communications with other parties, such as friends or trusted advisors, who are not attorneys, because doing so would undermine any privilege claim.  Even within a business organization, clients should make certain that any disclosure of privileged information is limited to only those individuals who are essential to the representation itself in order to avoid any inadvertent disclosures of the information that could limit the privilege.

Finally, the privilege does not apply if the purpose of the representation is to commit a crime or defraud another person.

What should a client keep in mind?

Attorney client privilege is an essential part of the client’s relationship with its attorney.  While the actual application differs between jurisdictions, and is much more complicated than the basic outlines here, the client should bear in mind some basic principles when communicating with its attorneys.            

First, the privilege covers consultation even for potential representation.  Therefore, if a client meets with a potential attorney, but does not retain the attorney, the communications still are privileged.

Second, the client should make certain to limit any disclosures only to the attorneys.  Importantly, not only should a client not include individuals, who are not essential to the representation in any communications, but the client must also be careful about the form of the communication, including what email account, mobile device, etc. that is used.  If the client does not have an expectation that the communications are private, the privilege will not attach.

Finally, and most importantly, the purpose of the privilege is to provide “full and frank” disclosure between client and attorney.  As such, the client should not hide things from its attorney as the privilege will cover even harmful communications if provided in this context.

 

Call today for a free consultation.

Wage Theft (Fair Labor Standards Act and New York Labor Law) Cases For Worker’s Rights

Berlingieri Law, PLLC is here for you – We Fight for Worker’s Rights and Victims of Wage Theft Across the USA – now in the Northern District of  California – for a case that started in NYC for Ex-employees were ordered to fake bar app’s popularity: suit

Story Published in April 207 about lawsuit on behalf of worker’s rights.

It’s fake brews.

Two employees of nightlife-rating app Bartrendr claim they were ordered to be pretend partygoers and post constantly in order to make the app seem popular.

The now-defunct app encouraged users to post comments on beers and bar scenes in real time.

The California bosses were so desperate to drum up business that they ordered workers to adopt “multiple pseudonyms or personas in order to give the application the appearance of more user interaction,” according to a lawsuit filed by Staci Spector, 47, and Lisa Garcia, 46.

They often worked more than 80 hours a week but were only paid $1,500 a month, they claim. Plaintiffs were fired in May 2015 after complaining, they charge in a wrongful-termination suit filed in Manhattan Supreme Court.

https://nypost.com/2017/04/29/ex-employees-were-ordered-to-fake-bar-apps-popularity-suit/

 

Sex Discrimination Protects Sexual Orientation

The federal Second Circuit Court of Appeals reversed its prior decision.  Its 2018, sexual orientation is protected against discrimination in the workplace under federal law. A victory for equal rights advocates.

The Historic Case is Cited in Full Caption Below:

 

MELISSA ZARDA, co-independent executor of the estate of Donald Zarda, and WILLIAM ALLEN MOORE, JR., co-independent executor of the estate of Donald Zarda, Plaintiffs-Appellants,
v.
ALTITUDE EXPRESS, INC., doing business as SKYDIVE LONG ISLAND, and RAY MAYNARD, Defendants-Appellees.

Docket No. 15-3775.

United States Court of Appeals, Second Circuit

The Second Circuit that includes New York, Connecticut, Vermont,  now joins Indiana, Illinois, or Wisconsin, (7th. Cir.) with federal employment law that prohibits your employer from firing you for your sexual orientation.  This is problematic because while there is no such protection for those in Georgia, Alabama, and Florida and other states whose Courts have not ruled on the issues.  It should be noted that the Second Circuit overruled itself in a 10-3 decision En Banc (sitting as a full panel, including senior judges). The Three dissents were outdated and seemed out of step with the times, as it is 2018 and the scope of of Title VII protection to root out and “stamp out” employment discrimination was the legislative intent of the Civil Rights Act of 1964.

The Second Circuit’s majority opinion written for the by Chief Judge Robert Katzmann expanded the scope of Title VII of the Civil Rights Act of 1964—which prohibits sex discrimination in the workplace—protects gay employees. Insofar as “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” and that it is imperative to “identify the sexual orientation of a particular person,” an employer must “know the sex of the person and that of the people to whom he or she is attracted.”  The majority held:

Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.”

Whats Next?: SCOTUS Review-  –   The Circuit split is clear the Supreme Court will have its take on the issue and ultimately will most likely rule in favor of the Title VII expansion of the term “sex” to include “sexual orientation” under Title VII once and for all.

Zarda Attorney tweets below:

#metoo Reporting of Sexual Harassment increases in 2018

Victims of Sexual Harassment Are Reporting More in 2018.

 

New York State’s Paid Family Leave

If you have questions about paid family leave in New York, Contact an employment attorney.

As of January 1, 2018, most employees who work in New York State for private employers are eligible to take Paid Family Leave. If you are a public employee, your employer may choose to offer Paid Family Leave.

New York’s Paid Family Leave provides job-protected, paid time off so you can:

  • bond with a newly born, adopted or fostered child;
  • care for a close relative with a serious health condition; or
  • assist loved ones when a family member is deployed abroad on active military service.

You can continue your health insurance while on leave and are guaranteed the same or a comparable job after your leave ends. If you contribute to the cost of your health insurance, you must continue to pay your portion of the premium cost while on Paid Family Leave.

Benefits

Paid Family Leave benefits phase in over four years. During 2018, you can take up to eight weeks of Paid Family Leave and receive 50% of your average weekly wage (AWW), capped at 50% of the New York State Average Weekly Wage (SAWW). Your AWW is the average of your last eight weeks of pay prior to starting Paid Family Leave. The SAWW is updated annually.

Paid Family Leave Benefits Examples for 2018

Worker’s average weekly wage Weekly PFL Benefit (2018)*
$600 $300
$1,000 $500
$2,000 $652.96

*The weekly PFL benefit is capped at 50% of the New York State average weekly wage, which is $652.96.

Benefits Increase Through 2021

Year Weeks of Leave Benefit
2018 8 weeks 50% of employee’s AWW, up to 50% of SAWW
2019 10 weeks 55% of employee’s AWW, up to 55% of SAWW
2020 10 weeks 60% of employee’s AWW, up to 60% of SAWW
2021 12 weeks 67% of employee’s AWW, up to 67% of SAWW

In 2018, the Paid Family Leave benefit is 50% of your average weekly wage, capped at 50% of the New York State Average Weekly Wage.

Example: An employee who makes $1,000 a week would receive a benefit of $500 a week (50% of $1,000). Another employee who makes $2,000 a week would receive a benefit of $652.96, because this employee is capped at one-half of New York State’s Average Weekly Wage —currently $1,305.92. Half of that amount is $652.96.

Leave can be taken either all at once or in full-day increments. You may take the maximum time-off benefit in any given 52-week period. The 52-week clock starts on the first day you take Paid Family Leave.

PUTTING LOVED ONES FIRST

Maternity & Paternity Leave

Whether you are expecting, fostering or adopting a child, you deserve to take time to care for your child without having to risk your economic security.

Caring for a Loved One

The time you spend caring for a loved one with a serious health condition is critical, whether it be a child, parent, parent-in-law, grandchild, grandparent, spouse or domestic partner.

Military Service

Paid Family Leave enables loved ones to spend time with those called to active military service and alleviates the pressure of working and caring for a child while a loved one is away.

Source:

https://www.ny.gov/new-york-state-paid-family-leave/paid-family-leave-information-employees