MOOCs Shake Up Intellectual Property Rights for Professors

By: Gregory T. Myers, Albany Government Law Review

A MOOC—a massive open online course—is a free or near-free, credit-less, online course[1] that is creating substantial buzz in the academic and technical communities.  The New York Times dubbed 2012 the “Year of the MOOC,” as MOOC companies and providers like Coursera, edX, and Udacity teamed up with top-tier schools like Stanford, Harvard, and M.I.T. to offer high-quality classes online.[2]  The democratization of formerly exclusive “brick and mortar” coursework has ushered in the enrollment of over four million students to some of these new and revolutionary courses.[3]  Never mind the most salient problems MOOCs face regarding their actual functionality and success,[4] an equally significant problem is faced by university and college professors collaborating to create the online courses: intellectual property rights.[5]

MOOCs flip the traditional college lecture on its ear because the course is being accessed by tens of thousands of students at a time, making it impossible for the instructor to tend to the needs of all the students.[6]  But it also flips the professor’s relationship with his or her employer.  Professors are part of an educational legion in universities that partner with MOOC providers (like Coursera).  As such, they are being asked to create new and interactive ways to engage their students using a brand-new internet medium. So it becomes important to ask who owns the intellectual property at the core of the course.[7]

Answering this question is difficult.  After all, faculty professors are now designers and creators of online courses.[8]  It has long been argued that principles of academic freedom prevail in favor of the professors—giving intellectual property rights to the professors when it comes to scholarly works.[9]  At the same time, the university contracting with the MOOC provider is the brand name that attracts and ultimately retains students.[10]  The scant case law on the subject only speaks to creations such as scholarly articles, not the new MOOC concept.[11]

Coursera, edX, and Udacity all state in their terms of service that they are the respective owners of the content that they provide on the MOOC platform and such content is subject to change at the will of the provider.[12]  This bumps elbows with the fair use standard.[13]  Under the fair use standard, copyrighted material can be freely used for educational purposes with the caveat that it is not of a commercial nature or has too substantial of an effect on the market value of the copyrighted work.[14] The disconnect is that teachers have traditionally held the exception to copyrighted work under the fair use standard because they are using the material in a limited capacity to a small number of people for educational purposes.  MOOCs change the rules on traditional education and the potential application of the fair use standard.

It can be argued that the MOOC platforms, especially the for-profit platforms, are of a commercial nature and flood the market to an extent that depreciates the value of copyrighted materials.  They are taking what was formerly used in a limited capacity fully within the scope of the fair use standard and injecting it into a market with ubiquitous connections via the Internet, and thus endless access.  Therefore, educational fair-use claims may be less likely to hold up when courses are as vast and open as those provided by the MOOC platforms.[15]  Essentially, the universities are bargaining with the MOOCs regarding intellectual property rights that neither may be entitled to—they are the professor’s intellectual property.[16]  The former president of the American Association of University Professors (AAUP), Cary Nelson, argues that “[i]f we lose the battle over intellectual property, it’s over” because a professor will be a service industry position rather than a professional teaching position.[17]  Nelson further prophesied a parade of horribles: that the future interests professors have in other scholarly works may be compromised if ownership rights reside solely with the employer university.[18]

The TEACH Act could become a factor in the future but it “is meticulous and detailed” which explains why few universities use it.[19]  The Act seeks “to balance the needs of distance learners and educators with the rights of copyright holders” by facilitating the display of copyrighted material for distance learners by accredited and non-profit institutions.[20] While some MOOC providers are non-profit, others are not, and they too still levy over the intellectual property rights of the universities and their professors.

Another concern is an internal one. Faculty union officials in California are concerned that professors will erode faculty intellectual property rights when they voluntarily teach free online classes.[21]  The voluntary nature of this issue also precludes certain collective bargaining powers that unions would otherwise have over their universities.[22]  If the professors hold out and do not voluntarily “teach” these MOOC courses, then that is a power they retain at the collective bargaining table.[23]  With that power, professors can work to secure their future interests by preventing employer universities from negotiating away potential intellectual property rights before there is even a discussion on the issue.

The benefits of taking a proactive approach to securing intellectual property rights at the collective bargaining table are clear. They forgo a marginalization of rights by all three parties—the professors, the universities, and the MOOC providers. Strong solidarity can help prevent otherwise vulnerable professors, like those being offered their first tenure-track positions, from being pressured into signing away their invention and intellectual property rights that could span their entire careers.[24]

Some universities take a “work for hire” approach wherein works created in the scope of employment belong to the employer and are, in this case, intellectual property rights belonging to the university.[25]  However, other universities have taken the opposite approach and granted intellectual property rights to their professors while courts seem to be split almost as similarly as the universities.[26]  In particular, Stanford asserts intellectual property ownership rights over its employees and that includes MOOC material but that is also because Stanford is not transferring ownership to the MOOC providers.[27]

With all the uncertainty circling the MOOC phenomenon and its inherent tri-level of content ownership, the most prudent way to handle it will be via proactive engagement of the parties.  This can be accomplished at the collective bargaining table between the professors and the universities and at the course development table between the universities and the MOOC providers.  The Economist stated that the MOOC could be the fall of the ivory tower.[28]  If so, are our professors tied to the same fate?

[1] Laura Pappano, The Year of the MOOC, N.Y. Times, Nov. 2, 2012, http://www.nytimes.com/2012/11/04/education/edlife/massive-open-online-courses-are-multiplying-at-a-rapid-pace.html?pagewanted=all&_r=0.

[2] Id.; Jon Marcus, MOOCs Keep Getting Bigger. But Do They Work?, Hechinger Rep. (Sept. 12, 2013, 7:31 AM), http://hechingerreport.org/content/moocs-keep-getting-bigger-but-do-they-work_12960/.

[3] Marcus, supra note 2.

[4] Id. Roughly ninety percent of people who sign up for a MOOC fail to complete them for one reason or another. Id.

[5] Ada Meloy, Legal Watch: Who Owns Your MOOCs? Updating Intellectual Property for the Modern Era, Am. Council on Educ. (May 1, 2013), http://www.acenet.edu/the-presidency/columns-and-features/Pages/Legal-Watch-Who-Owns-Your-MOOCs.aspx.

[6] Pappano, supra note 1.

[7] Meloy, supra note 5.

[8] Id.

[9] Id. However, this may be subject to some level of alteration when it comes to university, state, or federal grants for the purposes of research and discovery. See id. (discussing the educational institution’s interest in a MOOC based on the level of resources provided by the institution to the professor for its development).

[10] Id.

[11] See, e.g., Weinstein v. Univ. of Ill., 811 F.2d 1091 (1987) (holding that faculty members own a copyright interest in their scholarly articles). Id.

[12] See Terms of Use, Coursera (Jan. 2, 2014), https://www.coursera.org/about/terms (last visited Sept. 26, 2014); Terms of Service, Udacity (Nov. 14, 2013), https://www.udacity.com/legal/tos (last updated June 18, 2014); Terms of Service, edX (Sept. 17, 2013), https://www.edx.org/edx-terms-service (last updated Apr. 30, 2014).

[13] 17 U.S.C. § 107 (2014) (providing an exception for use of copyrighted material for “educational” purposes, amongst others).

[14] See id.

[15] What Campus Leaders Need to Know About MOOCs, Educause (2012), available at http://net.educause.edu/ir/library/pdf/PUB4005.pdf.

[16] Depending on the level of funding given to the professor, of course.

[17] Peter Schmidt, AAUP Sees MOOCs as Spawning New Threats to Professors’ Intellectual Property, Chronicle of Higher Educ. (June 12, 2013), http://chronicle.com/article/AAUP-Sees-MOOCs-as-Spawning/139743/.

[18] Id.

[19] Kenneth Crews, MOOCs, Distance Education, and Copyright: Two Wrong Questions to Ask, Columbia U. (Nov. 9, 2012), http://copyright.columbia.edu/copyright/2012/11/09/moocs-distance-education-and-copyright-two-wrong-questions-to-ask/.

[20] The TEACH Act: New Roles, Rules and Responsibilities for Academic Institutions, Copyright Clearance Ctr., http://www.copyright.com/media/pdfs/CR-Teach-Act.pdf (last visited Sept. 29, 2014).

[21] Ry Rivard, Who Owns a MOOC?, Inside Higher Ed (March 19, 2013), http://www.insidehighered.com/news/2013/03/19/u-california-faculty-union-says-moocs-undermine-professors-intellectual-property.

[22] See id.

[23] Id.

[24] See generally Schmidt, supra note 17.

[25] Megan W. Pierson, Robert R. Terrell & Madelyn F. Wessel, Massive Open Online Courses (MOOCs): Intellectual Property and Related Issues, Nat’l Ass’n of Coll. and Univ. Attorneys 1–2 (June 19, 2013), available at http://www.higheredcompliance.org/wp-content/uploads/2013/09/AC2013_5G_MOOCsPartI1.pdf (citing Copyright Act of 1976, 17 U.S.C. Sections 201(b); “University of Virginia Policy: Ownership Rights in Copyrightable Material” (2004) (asserts university ownership interest under work for hire doctrine and cedes ownership of scholarly works “such as journal articles, books and papers” but does not include course materials) “Stanford University Research Policy Handbook” Section 9.2 (includes work for hire doctrine and provides that courses taught and courseware developed for teaching at Stanford belong to the university); University of Chicago, Copyright Policy for Faculty and Other Academic Appointees (2012) (concerning copyrightable works involving new information technologies, the university owns the intellectual property the faculty create at the University).

[26] Id. at 2-3.

[27] Clarisse Peralta, Online Courses Raise Intellectual Property Concerns, The Stanford Daily (Nov. 1, 2012), http://www.stanforddaily.com/2012/11/01/intellectual-property-concerns-for-moocs-persist/.

[28] MOOCs: The Fall of the Ivory Tower?, Economist (Aug. 1, 2013), http://www.economist.com/blogs/schumpeter/2013/08/moocs-fall-ivory-tower.

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Man’s Best Friend? New York’s Antiquated Approach to Animal Cruelty Laws

By: Kelly Maloney, Albany Government Law Review

Studies show that many health benefits are derived from relationships between companion animals and their owners.[1] Animals have been shown “to improve cardiovascular health, reduce stress, decrease loneliness and depression, and facilitate social interactions among people who to choose to have pets.”[2] Moreover, service dogs are commonly used as a resource in assisting children suffering from cancer and military veterans who have suffered stress from battle, helping them to rehabilitate both mentally and physically.[3]   Many police departments across the nation employ dogs as an instrumental part of their organizations through the use of K-9 units.[4] It is evident by these examples, and many more that go unnamed, that our society gives great responsibility and praise to animals. So, why are our laws so unwilling to protect them in the same way that they are used to protect people?

In New York, the most horrific crime of animal cruelty is punishable by a maximum sentence of merely two years.[5] Under New York’s Agriculture and Markets Law, of which the laws protecting animals regrettably fall under:

A person is guilty of aggravated cruelty to animals when, with no justifiable purpose, he or she intentionally kills or intentionally causes serious physical injury to a companion animal with aggravated cruelty. “[A]ggravated cruelty” shall mean conduct which: (i) is intended to cause extreme physical pain; or (ii) is done or carried out in an especially depraved or sadistic manner.

. . . .

Aggravated cruelty to animals is a felony. . . . [A]ny term of imprisonment imposed for violation of this section shall be a definite sentence, which may not exceed two years.[6]

Conversely, a similar crime committed to a human being carries a maximum sentence of life imprisonment.[7] Under New York’s Penal Law,

[a] person is guilty of murder in the first degree when . . . [w]ith intent to cause the death of another person, he causes the death of such person or of a third person; and . . . the defendant acted in an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim prior to the victim’s death. “[T]orture” means the intentional and depraved infliction of extreme physical pain . . . . Murder in the first degree is a class A-I felony.[8]

A class A-I felony carries a possible sentence of life imprisonment without parole or a minimum of twenty to twenty-five years and a maximum of life imprisonment.[9] Seemingly identical crimes carry drastically different sentences.[10]   However, both crimes equally, and horrifically, deprive living, breathing species of a chance at life. Both crimes contain the similar requisite intent to commit extreme physical pain or torture in a depraved manner.[11] Yet, the sentences associated with laws punishing animal cruelty in New York State fall far below a standard of punishment that is appropriate for such acts of cruelty. New York’s animal cruelty laws should be more closely aligned with sentences punishing similar acts committed upon human beings.

Animal cruelty is far too prevalent in our society. In People v. Brodsky, a Montgomery County man was convicted of aggravated cruelty to animals when “he savagely killed three cats belonging to his sister by the use of an axe.”[12] Brodsky was serving a five-year term of probation for an attempted burglary in the third degree conviction at the time of the crime.[13] He was sentenced to consecutive prison terms of two years for aggravated cruelty to animals and one to four years for attempted burglary in the third degree, the crime underlying the probation period.[14] Brodsky was sentenced to possibly twice the term of imprisonment for the burglary charge than for the vicious murder of three helpless animals. Under New York State’s Penal Law, “[a] person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.”[15] It seems unjust that New York law takes the entering of building with the intent to commit a crime therein, but failure to do so, more seriously that the successful and vicious murder of numerous innocent creatures.

This disconnect is not only prevalent in New York State. In Massachusetts, the precious pit-bull pup dubbed “Puppy Doe” by Boston media was found tortured and left to die in a Quincy, Massachusetts park this summer.[16] She was found beaten, broken boned, stabbed in the eye, burned, with her limbs pulled from her joints, and with her tongue mutilated into a serpent-like fork.[17] The veterinarian who worked on “Puppy Doe’s” case stated that it was “the worst case of animal abuse” that she had ever seen, indicating that the puppy was a “rack of broken bones.”[18] It was found that the puppy’s injuries were in several different stages of healing at the time the she was found, indicating that the torture took place over an extended period of time.[19] By the time that “Puppy Doe” was rescued, it was too late to save her and the humane society was forced to humanely euthanize her.[20]

Radoslaw Czerkawski, the suspect in the “Puppy Doe” case was indicted on twelve counts of animal cruelty and one count of misleading police; he was held without bail, at the request of his own attorney.[21] “The [twelve] counts of animal cruelty include starvation, willful abandonment, right eye stab wound, two deep nose injuries, cut to the tongue, multiple fractures to the head and spine, fractured ribs, front and back leg injuries, and burn wounds.”[22] Each of the twelve counts of animal cruelty carry up to five years imprisonment while the misleading police charge carries up to ten years imprisonment.[23] Again, while the Massachusetts Penal Law allows for a slightly longer sentence for animal cruelty as we do in New York State, the sentence for misleading the police is still twice the length of the sentence for torturing, mutilating, starving, and murdering an innocent puppy in indescribable ways.[24]

Many of the laws protecting animals were drafted decades ago[25] and contain language and ideology that is far behind our time. Animals are no longer seen as a possession but instead have transformed into trusted friends and members of our families. It is no longer acceptable to allow these innocent creatures to go under protected by the law. Instead, the laws governing crimes against animals should be expanded, and amended, to fall under New York’s Penal Law. Accordingly, animal cruelty laws should be strengthened to ensure adequate protection for animals and those offenses should be classified in order to allow for strict punishment under the law. Reclassifying animal cruelty laws would allow offenders to be held to a greater degree of accountability by enabling harsher sentences that are more consistent with those that are currently employed to punish crimes committed upon human beings, as well as, property.

While I stand firm in my stance that animal cruelty laws should be reassessed and deemed as more serious crimes with lengthier sentences, more consisted with those that would be enforced if similar crimes were committed upon human beings, I recognize that many people may not agree. However, most people would agree that society—our human society that is—should be protected from criminals who choose to reoffend. Both of the defendants in the cases described above had a criminal past before they committed their respective acts of cruelty on animals. Nicholas Brodsky was serving a five-year term of probation on an attempted burglary charge at the time that he savagely killed three cats.[26] Radoslaw Czerkawski allegedly moved across the United State’s deceiving people all along the way, including conning a Massachusetts priest, stealing from various church dioceses, and other instances of fraud.[27] It is not uncommon for animal abusers to partake in other forms of illegal activity. If our lawmakers are unwilling to protect our animals equally to the way that they protect people, they should, at a bare minimum, be required by law to protect the future human victims of those criminals who commit horrific acts of violence against animals. The best way to protect our society as a whole, both people and animals, is to take animal cruelty more seriously and mandate harsher sentencing.

[1] Pets Are Wonderful Support, The Health Benefits of Companion Animals http://www.pawssf.org/document.doc?id=15 (last visited Sept. 30, 2014).

[2] Id.

[3] Wags4Patriots: Service Dogs for Service Members, American Humane Ass’n, http://www.americanhumane.org/interaction/programs/military/wags4patriots.html (last visited Sept. 30, 2014).

[4] See, e.g., Eden Consulting Group, Police Dog Home Page, http://www.policek9.com (last visited Sept. 30, 2014).

[5] N.Y. Agric. & Mkts. Law § 353-a (McKinney 1999).

[6] Id. (emphasis added).

[7] Barry Kamins, Graybook: N. Y. Crim. Stat. & Rules SG-5 (LexisNexis 2013 Edition).

[8] N.Y. Penal Law § 125.27(1)(a)(x) (McKinney 2013) (emphasis added).

[9] Kamins, supra note 7.

[10] N.Y. Penal Law § 125.27(1)(a)(x) (McKinney); N.Y. Agric. & Mkts. Law § 353-a (McKinney); Kamins, supra note 7.

[11] N.Y. Penal Law § 125.27(1)(a)(x) (McKinney); N.Y. Agric. & Mkts. Law § 353-a (McKinney).

[12] People v. Brodsky, 16 A.D.3d 843, 843 (2005).

[13] Id.

[14] Id. at 844.

[15] N.Y. Penal Law § 140.20 (McKinney 2014).

[16] Puppy Doe: Tortured and Murdered, Young Puppy’s Death is a Call for Justice, Examiner.com, (Sept. 25, 2013, 3:15 PM), http://www.examiner.com/article/puppy-doe-tortured-and-murdered-young-puppy-s-death-is-a-call-for-justice [hereinafter Examiner.com].

[17] Justice For Puppy Doe, Change.org, http://www.change.org/petitions/justice-for-puppy-doe-tell-craigslist-to-help-stop-violence-against-pets (last visited Jan. 31, 2014); Examiner.com, supra note 16.

[18] Examiner.com, supra note 16.

[19] Radoslaw Czerkawski To Be Held on No Bail; Puppy Doe Will See Justice, Examiner.com, (Dec. 19, 2013), http://www.examiner.com/article/radoslaw-czerkawski-to-be-held-on-no-bail-puppy-doe-will-see-justice [hereinafter Puppy Doe Will See Justice].

[20] Examiner.com, supra note 16.

[21] Puppy Doe Will See Justice, supra note 19.

[22] Id.

[23] Id.

[24] Id.

[25] See generally Nassau DA Says Animal Crimes Bill ‘Stalled’ in State Legislature, Examiner.com (Apr. 7, 2014, 3:03 PM), http://www.examiner.com/article/nassau-da-says-animal-crimes-bill-stalled-state-legislature (noting that New York’s Agriculture and Markets Law dates back to the mid-nineteenth century).

[26] People v. Brodsky, 16 A.D.3d 843, 843 (2005).

[27] Katheleen Conti & Emily Sweeney, Puppy Doe Suspect Has Murky Past, Boston Globe (Nov. 7, 2013), http://www.bostonglobe.com/metro/regionals/south/2013/11/07/puppy-doe-suspect-past-shrouded-mystery/sUTYeYzGcXK5SHUmAlXJKK/story.html.

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The Pro Bono Requirement in New York: How the New York Courts Have Pushed for an Increase in Legal Services to the Poor

By: Nicholas Martin, Albany Government Law Review

On September 14, 2012, the Chief Judge of the New York Court of Appeals, Jonathan Lippman, added a new mandatory rule for applicants to the New York State bar.[1] This new requirement states that each bar applicant in the State of New York must complete a minimum of fifty hours of pro bono services prior to admission.[2] The relevant portion of the New York Codes, Rules and Regulations is as follows:

(a) Fifty-hour pro bono requirement. Every applicant admitted to the New York State bar on or after January 1, 2015, other than applicants for admission without examination pursuant to section 520.10 of this Part, shall complete at least 50 hours of qualifying pro bono service prior to filing an application for admission with the appropriate Appellate Division department of the Supreme Court.[3]

According to the new rule, pro bono service is defined as work performed for people of limited means, not-for-profit organizations, and others—meaning individuals, groups, or organizations—that seek to “promote access to justice.”[4]

This mandate for applicants to the New York bar is the first of its kind in the nation.[5] No other state therefore has this mandate; other states merely encourage pro bono work.[6] However, it is important to note that California’s State Bar is preparing a similar pro bono requirement of fifty completed hours for bar applicants, and the New Jersey Supreme Court has made recommendations for a fifty–hour mandate as well.[7] As stated in the regulation above, the requirement will apply to every applicant to the New York bar beginning on January 1, 2015.[8]

Surprisingly, many future law students are not opposed to this fifty-hour mandate.[9] According to a Kaplan survey taken in June of 2013, in which 750 pre-law students partook, approximately sixty–eight percent of these students believed that a requirement for bar applicants to complete a set number of hours for pro bono work prior to admittance was a good idea.[10] Regardless of the reaction from future New York State bar applicants, it appears that the New York Courts have made a significant push for an expansion of legal services rendered to the poor as well as other non-profit organizations.[11]

The push towards increased pro bono work in the State of New York does not only affect bar applicants, but practicing attorneys as well. Beginning on May 1, 2013, the New York Courts increased the recommended hours of pro bono legal services to the poor from twenty to fifty hours.[12] According to Rule 6.1 of the New York Rules of Professional Conduct:

Lawyers are strongly encouraged to provide pro bono legal services to benefit poor persons.

(a) Every lawyer should aspire to:

(1) provide at least 50 hours of pro bono legal services each year to  poor persons; and

(2) contribute financially to organizations that provide legal services each year to poor persons.[13]

It is important to note that, for practicing attorneys in the State of New York, it is only strongly encouraged to provide fifty hours of pro bono legal services per year; that is, lawyers in this state are not mandated to provide any legal services to the poor.[14] Regardless, it seems evident that the New York Court of Appeals is pushing toward an increase in pro bono services from practicing attorneys with this increase in recommended annual hours.

The change made to Rule 6.1 of the New York Rules of Professional Conduct is not the only New York statute that has had an impact on licensed attorneys in the State of New York. Also taking effect on May 1, 2013, a new reporting requirement was added to section 118.1 of the Rules of the Chief Administrator.[15] Section 118.1(e)(14) deals with reporting requirements that lawyers must put in their biennial registration forms.[16]

According to the regulation:

Section 118.1 Filing Requirement

(e) The registration statement shall be on a form provided by the Chief Administrator and shall include the following information, attested to by affirmation:

(14)(a) voluntary unpaid pro bono services and (b) voluntary financial contributions made to organizations primarily or substantially engaged in the provision of legal services to the underserved and to the poor during the previous biennial registration period.[17]

This is a mandatory reporting requirement to all practicing attorneys in New York.[18] All lawyers of the state must report—every two years—the number of hours voluntarily spent providing unpaid legal services to poor clients, and the amount of voluntary financial contributions made to organizations that provide legal services to the poor.[19]

The New York Court of Appeals passed the above laws—the amendment to Rule 6.1 of the Rules of Professional Conduct and the new pro bono reporting requirement—concurrently, with the clear intention of increasing the amount legal services rendered from practicing attorneys to the poor and needy.[20] Though the Court may have had good intentions in passing these amendments, the idea of imposing a mandatory biennial report disclosing the number of hours spent rendering legal services to the indigent was not as popular as the Court may have expected. This mandatory reporting requirement has been met with opposition from various legal authorities in the State, including members of the New York State Bar Association, as well as—ironically—various pro bono organizations.

In a letter dated June 26, 2013, the President of the New York State Bar Association, David M. Schraver, wrote a letter to Chief Judge Lippman in response to the new amendments passed to the pro bono laws. He begins his letter referencing how the New York State Bar Association’s members take seriously their part in providing legal services to the poor, as well as providing voluntary financial contributions to non-profit organizations that provide more direct services to the impoverished.[21] However, Schraver writes, the Association is opposed to the recent reporting requirement amendment to section 118 of the New York Codes, Rules and Regulations.[22] One reason for this opposition deals with privacy issues. Schraver writes “[l]awyers’ personal pro bono services and contributions will have to be reported and will be available to any member of the public and the media. Our members regard such reporting and disclosure as an invasion of privacy.”[23] Another factor that Schraver writes about deals with the coercive nature of this mandatory biennial reporting requirement, stating that lawyers should choose to provide pro bono legal services because they want to assist the needy—not because they feel pressured to report hours on their reports.[24] Schraver lists a few other reasons why the bar association is against this mandatory reporting requirement, but these arguments are equally unpersuasive. Regardless, though, the mandatory biennial reporting requirement has been met with opposition from the New York State Bar Association.[25]

Quite surprisingly, the amendment creating the mandatory biennial reporting requirement has been met with opposition from pro bono groups as well, but for a different reason. A letter written by Brenna K. DeVaney, Chair of the Committee of Pro Bono and Legal Services, to Judge Lippman, stated that the reporting standard provided in the New York Code, Rules and Regulations is inconsistent with the description of pro bono legal services as provided in Rule 6.1 of the New York Rules of Professional Conduct.[26] As stated above, Rule 6.1 defined pro bono work as legal services rendered to the poor and non-profit organizations,[27] whereas the reporting requirement excludes work done for non-profits, mandating reports only for legal services rendered for the poor and financial contributions made to organizations dealing that render services to the poor.[28] The Committee argues that, because the reporting requirement provides only for financial contributions made to non-profit organizations rather than legal services rendered, this may lead to a decrease in pro bono work to these non-profit organizations, which, ironically, may in turn end up hurting the very people that pro bono is intended to help—the poor.[29] The Association of Pro Bono Counsel also has a similar complaint, stating that, while there is a strong support for the mandatory reporting requirement, the services eligible to be reported are too narrow.[30] “This definition appears to exclude the substantial amount of pro bono legal service that our attorneys provide to the many nonprofits serving this community, in addition to other work vital to low income New Yorkers.”[31] Though there are some complaints as to the exact definition of pro bono work that is eligible for reporting, the various pro bono associations overall believe this mandatory reporting requirement is a good idea and a step in the right direction for the State of New York.

The New York Court of Appeals has made some significant changes to the pro bono requirements in the state, whether it is for bar applicants or practicing attorneys. The statewide fifty-hour mandate for free legal services rendered by future bar applicants is the first of its kind in the United States, with other states beginning to consider adopting similar provisions. The change made to Rule 6.1 of the New York Rules of Professional Conduct that strongly encourages attorneys to provide fifty hours of pro bono work a year, coupled with the mandatory biennial reporting requirement mandating lawyers to disclose the number of hours spent rendering legal services to the indigent, marks a substantial change in responsibility for practicing attorneys in the state.[32] Irrespective of the praise or criticism toward these changes, the New York Courts have clearly made a significant push for increased pro bono work to the poor that affects all attorneys and aspiring attorneys in New York State. 

 

[1] State of New York, Court of Appeals, In the Matter of the Amendment of the Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law, Sept. 14, 2012, available at http://www.courts.state.ny.us/attorneys/probono/Rule520_16.pdf; 22 N.Y. Comp. Codes R. & Regs. § 520.16 (2008).

[2] 22 N.Y. Comp. Codes R. & Regs. § 520.16 (2008).

[3] Id.

[4] Id. § 520.16(b).

[5] See, e.g., James Podgers, New York’s New Rule Requires Bar Applicants to Perform 50 Hours of Pro Bono, A.B.A. J. (Mar. 1, 2013, 4:10 AM CDT), http://www.abajournal.com/magazine/article/new_yorks_new_rule_requires_bar_applicants_to_perform_50_hours_of_pro_bono/; Karen Sloan, Prospective Students Back Pro Bono Requirement, 250 N.Y. L. J. (Aug. 1, 2013), http://www.newyorklawjournal.com/id=1202613285016?slreturn=20140030104157.

[6] Podgers, supra note 5.

[7] Sloan, supra note 5.

[8] Id.; Podgers, supra note 5.

[9] Sloan, supra note 5.

[10] Id.

[11] See N.Y. Rules of Prof’l Conduct R. 6.1 (2013).

[12] Id.

[13] Id.

[14] Id.

[15] 22 N.Y. Comp. Codes R. & Regs. § 118.1(e)(14).

[16] See id.

[17] Id.

[18] See 22 N.Y. Comp. Codes R. & Regs. §§ 118.1(a), (b).

[19] Id.; 22 N.Y. Comp. Codes R. & Regs. § 118.1(e)(14).

[20] See id.

[21] Letter from David M. Schraver, President, N.Y. State Bar Ass’n, to Jonathan Lippman, Chief Judge of the State of N.Y. (June 26, 2013).

[22] Id.

[23] Id.

[24] Id.

[25] New President Pledges To Preserve What’s Best About The State Bar – And Move it Forward, The Metropolitan Corp. Counsel (Aug. 12, 2014, 1:19 PM), http://www.metrocorpcounsel.com/articles/29579/new-president-pledges-preserve-whats-best-about-state-bar-%E2%80%93-and-move-it-forward.

[26] Letter from Brenna K. DeVaney, Chair, Comm. of Pro Bono & Legal Services, to Jonathan Lippman, Chief Judge of the State of N.Y. (May 24, 2013), available at http://www2.nycbar.org/pdf/report/uploads/20072511-LettertoJudgeLippmanonReportingProBonoHours.pdf.

[27] N.Y. Rules of Prof’l Conduct R. 6.1.

[28] 22 N.Y. Comp. Codes R. & Regs. § 118(e)(14)(a).

[29] Letter from Brenna K. DeVaney, supra note 26.

[30] Letter from the Association of Pro Bono Counsel to Jonathan Lippman, Chief Judge of the State of N.Y. (May 22, 2013), available at http://nylawyer.nylj.com/adgifs/decisions/061913apbco.pdf (last visited Aug. 25 9:25 PM).

[31] Id.

[32] Nora A. Jones, Pro Bono Spotlight: Central & Western New York Chapter of the Association of Corporate Counsel Members Discuss Legal Service Needs, N.Y. Daily Record (Mar. 11, 2014), http://nydailyrecord.com/blog/2014/03/11/pro-bono-spotlight-acc-chapter-members-discuss-legal-service-needs/.

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THE CHANGING OBLIGATIONS OF TRIAL COURT AND ATTORNEY OBLIGATIONS IN THE WAKE OF PADILLA

By: Brienna Christiano, Albany Government Law Review

In recent history, there has been a significant upheaval in the understanding of what criminal defense attorneys and trial courts are obligated to tell criminal defendants regarding the deportation consequences of the accepted plea agreement.[1] Recent Supreme Court cases have created a complex line of cases that led to the overruling of a landmark New York Court of Appeals case, People v. Ford, 86 N.Y. 2d 397 (1995).[2] These decisions have created a new procedure for criminal defense attorneys and trial courts prior to a criminal defendant’s acceptance of a plea deal.[3]

In 2010, the Supreme Court decided Padilla v. Kentucky, a groundbreaking case holding that a criminal defendant who is not informed by his attorney of the immigration consequences of a criminal conviction prior to accepting a plea deal has a viable ineffective assistance of counsel claim under the Sixth Amendment.[4] Prior to the Padilla decision, most state and federal courts did not require attorneys to inform their clients of the consequences of their convictions.[5] In Padilla, the defendant, a native Honduran and Vietnam veteran, had been a “lawful permanent resident of the United States for more than forty years.”[6] Padilla pled guilty to the transportation of marijuana.[7] He claims that prior to entering the plea, his counsel not only failed to inform him of the consequences of a criminal conviction, but also erroneously told him that because he had been a resident of the United States for so long, he “did not have to worry about immigration status.”[8] Padilla then accepted the plea, which subsequently led to deportation proceedings being brought against him.[9]

The Court applied the standard set out in Strickland v. Washington for ineffective assistance of counsel claims, and determined that counsel must advise her client regarding the risk of deportation.[10] The Court reasoned that it should be relatively simple for attorneys to look through the relevant deportation statute to decide if their client’s conviction could lead to immigration consequences down the road.[11] As opposed to complicated immigration law, the statute outlining behaviors that lead aliens to be deported from the United States is more simplistic and accessible.[12]

In 2013, the Supreme Court decided Chaidez v. U.S., 133 S.Ct. 1103 (2013),[13] which affects the application of Padilla to defendants whose convictions were final prior to 2010. In that case, the Court explicitly stated that the Padilla holding does not apply retroactively to a person whose conviction was final prior to the date of the Padilla decision in 2010.[14] The appellant in Chaidez was similarly uninformed that her conviction would subject her to removal from the United States; Chaidez’s conviction became final in 2004.[15] The Court declined to apply Padilla retroactively based on its previous holding in Teague v. Lane, 489 U.S. 288 (1989), which held that “retroactivity of our criminal procedure decisions turn on whether they are novel.”[16] Padilla changed the law for most jurisdictions by imposing new obligations on attorneys. However, because the Court considered the holding to be a new rule it refused to apply it retroactively.[17]

The Padilla holding had a major impact on New York State’s position in this area. Prior to the Supreme Court’s decision in Padilla, People v. Ford was the controlling case in New York concerning whether an attorney had the duty to inform his client of the deportation consequences before his client accepts a plea deal.[18] In Ford, the defendant was showing a gun to his girlfriend and, believing the gun to be unloaded, pulled the trigger and instantly killed her.[19]

Following counsel’s advice, Ford pled guilty to manslaughter in the second degree.[20] Since Ford was a legally documented alien from Jamaica convicted of a crime involving moral turpitude, deportation proceedings were commenced against him shortly thereafter.[21] The court held that counsel’s failure to warn Ford of the possibility of deportation did not constitute ineffective assistance of counsel.[22] Applying the Strickland standard, the court reasoned that because Ford’s counsel did not misadvise him, but instead just omitted to mention any deportation consequences, the Strickland standard was not met.[23]

Furthermore, the court concluded that the trial court only has to inform the defendant of the direct consequences of his plea prior to its entry.[24] The court generally does not have an obligation to inform the defendant of the collateral consequences of his plea.[25] Deportation was deemed by the court to be a collateral consequence of a conviction because “it is a result peculiar to the individual’s personal circumstances and one not within the control of the court system.”[26] Therefore, because the risk of deportation would be a unique concern to that particular defendant, the trial court was not obligated to inform him of the potentially life-changing impact that his conviction could have.

The Ford decision is clearly at odds with the Supreme Court’s holding in Padilla. The Court took up this issue in People v. Peque,.[27] The issue in the case was almost identical to that in Padilla, but the court considered whether a trial court must inform a criminal defendant of the deportation consequences of a criminal conviction prior to the acceptance of a plea or whether the duty rested solely on the defendant’s attorney.[28] The court held that “deportation constitutes such a substantial and unique consequence of a plea that it must be mentioned by the trial court to a defendant as a matter of fundamental fairness.”[29]

Thus, although the court was split on the issue of whether deportation could be considered a direct or collateral consequence of a guilty plea, the court held that regardless, the risk of deportation is severe enough to warrant its discussion prior to the entry of a plea.[30] The court then partially overruled part of its prior holding in Ford. In particular, Peque overruled the part of Ford holding that a trial court’s omission of any discussion of deportation at the plea proceeding does not render the defendant’s plea involuntary.[31] Thus, trial courts now have the duty to tell defendants that, if they are not United States citizens, their felony guilty pleas may expose them to deportation proceedings.[32]

The Supreme Court’s ruling in Padilla has caused significant changes to the rights of non-citizen defendants. After Padilla, non-citizen defendants who are not warned by their counsel of the deportation consequences of the plea deal have a valid ineffective assistance of counsel claim under the Sixth Amendment.[33] Thus, Padilla has put a duty on attorneys to warn their clients of the possibility of immigration consequences stemming from a criminal conviction.[34] However, the recent Supreme Court holding in Chaidez informs that the Padilla holding only applies to individuals whose convictions were finalized after the Padilla decision was handed down in 2010. Criminal defendants wishing to raise an ineffective assistance of counsel claim under the Padilla holding must have a finalized conviction after 2010.[35] The New York Court of Appeals built off the Padilla decision in Peque by mandating that trial courts have the duty to inform all defendants of the possibility of deportation prior to entering into a plea deal.[36]

The Court of Appeals was undoubtedly influenced by the significant and harsh impact that deportation has on non-citizen defendants. The U.S. Immigration and Customs Enforcement (ICE) reports that “ICE conducted 133,551 removals of individuals apprehended in the interior of the United States.”[37] Additionally, “eighty-two percent of all interior removals had been previously convicted of a crime.”[38] An ICE spokesperson said: “ICE has been vocal about the shift in our immigration enforcement strategy to focus on convicted criminals, public safety and border security and our removal numbers illustrate this[.]”[39] With deportation rates at such staggering heights, it is imperative that criminal defendants are warned of the severe consequences of their acceptance of pleas.

[1] Vincent Bonventre, Supreme Court: Highlights … (Part 7—More Criminal Law Decisions), New York Court Watcher, January 3, 2011.

[2] Padilla v. Kentucky, 559 U.S. 356, 364 (2010) (holding that counsel must inform his clients who are criminal defendants of the immigration consequences of his conviction); Chaidez v. U.S., 133 S.Ct. 1103, 1105 (2013) (holding that Padilla does not have retroactive effect); People v. Ford, 86 N.Y. 2d 397 (N.Y. 1995).

[3] Padilla, 559 U.S. at 366.

[4] Id at 365.

[5] Kevin Johnson, Court Refuses to Apply Padilla v. Kentucky retroactively, SCOTUS Blog, Feb. 21, 2013, http://www.scotusblog.com/2013/02/opinion-recap-court-refuses-to-apply-padilla-v-kentucky-retroactively/.

[6] Padilla, 559 U.S. at 359.

[7] Padilla, 559 U.S. at 359; 8 U.S.C. § 1227(a)(2) (This statute lays out the types of crimes that warrant the deportation of aliens. Among the crimes that begin deportation proceedings include: crimes of moral turpitude, aggravated felony, high speed flight, failure to register as a sex offender, virtually any drug offense: whether it was a federal or state violation, drug addiction, and certain firearm offenses.).

[8] Padilla v. Kentucky, 559 U.S. 356, 364 (2010) (quoting 253 S.W. 3d 482, 483 (K.Y. 2008)).

[9] Padilla, 559 U.S. at 359.

[10] Padilla, 559 U.S. at 366–67; Strickland v. Washington, 466 U.S. 668, 687 (1984)) (The Court set the standard for ineffective assistance of counsel claims: “First, the defendant must show that counsel’s performance was deficient . . . . Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial[.]”).

[11] Padilla, 559 U.S. at 369.

[12] 8 U.S.C. § 122; Padilla, 559 U.S. at 385.

[13] Chaidez v. U.S., 133 S.Ct. 1103, 1105 (2013).

[14] Id.

[15] Id. at 1106.

[16] Id. at 1107; Teague v. Lane, 489 U.S. 288, 310 (1989) (“[W]e now adopt Justice Harlan’s view of retroactivity for cases on collateral review. Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.”).

[17] Chaidez, 133 S.Ct. at 1110.

[18] People v. Ford, 86 N.Y.2d 397, 401 (N.Y. 1995), overruled by People v. Peque, 22 N.Y.3d 168, 176 (N.Y. 2013).

[19] Ford, 86 N.Y.2d at 402.

[20] Id.

[21] Id.

[22] Id. at 404.

[23] Id. at 405.

[24] People v. Ford, 86 N.Y.2d 397, 403 (N.Y. 1995), overruled by People v. Peque, 22 N.Y.3d 168 (N.Y. 2013).

[25] Id. (Some examples the court gives of collateral consequences are the loss of the right to vote, travel abroad, possess firearms, or civil service employment.).

[26] Id.

[27] People v. Peque, 22 N.Y.3d 168, 175 (N.Y. 2013).

[28] Id. at 175.

[29] Id. at 194.

[30] Id. at 189, 192–93, 196, 204, 207*12–13 (“[A] convicted non-citizen defendant’s actual removal from the country exacts the greatest toll on the defendant and his or her family . . . [T]he defendant loses the precious rights and opportunities available to all resident of the United States.”).

[31] Id. at 195–96.

[32] Id. at 197.

[33] Padilla v. Kentucky, 559 U.S. 356, 364–66 (2010).

[34] Id. at 374.

[35] Chaidez v. U.S., 133 S.Ct. 1103, 1105 (2013).

[36] People v. Peque, 22 N.Y.3d 168, 197.

[37] FY 2013 ICE Immigration Removals, U.S. Dep’t of Homeland Security: ICE, (Jan. 25, 2014, 12:53 PM (last visited August 22, 2014), http://www.ice.gov/removal-statistics/. (alterations in original).

[38] Id.

[39] Stephen Dinan, Report: Deportations Plummet in 2013, Lowest Since 2007, Wash. Times, Oct. 30, 2013. (alterations in original).

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