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Ruden McClosky Smith Schuster & Russell, PA

PARTNER EVETT SIMMONS TO PARTICIPATE IN DIVERSITY DISCUSSION AT NEW YORK STATE BAR ASSOCIATION ANNUAL MEETING
NEW YORK STATE BAR ASSOCIATION
2006 ANNUAL MEETING

January 23, 2006

THE COMMITTEE ON MINORITIES IN THE PROFESSION

--Presents--

AT A CROSSROADS -- AFFIRMATIVE ACTION AND DIVERSITY IN THE PROFESSION: WHERE DO WE GO FROM HERE?

A Panel Discussion and 3-Hour CLE on Where We’ve Been, Where We Are and Where We Go From Here in Our Efforts to Diversify the Legal Profession and Confront the Challenges to Full and Equal Profession on the Road to Law School and Beyond

Moderators:

John E. Higgins, Esq., Counsel, Nixon Peabody, LLP
Co-Chair, NYSBA Committee on Minorities in the Profession

Debra J. Dickerson, Author, The End of Blackness; former Senior Editor, U.S. News and World Report

Panelists

Evett L. Simmons, Esq., Partner, Ruden McClosky, and
Chair of the ABA Presidential Advisory Council on Diversity in the Profession

Gerald Reynolds, Esq., Chair, U.S. Commission on Civil Rights

Kent D. Lollis, Esq., Associate Executive Director and Assistant
to the President for Minority Affairs, Law School Admissions Council

Kenneth G. Standard, Esq., Immediate Past President NYSBA, Chair, NYSBA
Youth Outreach Committee, Partner and Diversity Chair, Epstein Becker & Green

Elizabeth Moore, Esq., Partner and Diversity Action Committee Chair, Nixon Peabody, former Chair, NYSBA Committee on Minorities in the Profession

Eric M. Brooks, Esq., Associate, Morrison & Foerster

Theodore Shaw, Esq., NAACP Legal and Education Defense Fund


AT A CROSSROADS -- AFFIRMATIVE ACTION AND DIVERSITY IN THE PROFESSION: WHERE DO WE GO FROM HERE?

A Panel Discussion and 3-Hour CLE on Where We’ve Been, Where We Are and Where We Go From Here in Our Efforts to Diversify the Legal Profession and Confront the Challenges to Full and Equal Profession on the Road to Law School and Beyond

I. “Miles to Go” Towards Full and Equal Participation in the Profession – An Introduction (Estimated Time: 50 minutes)

Summary: On October 22, 2003, the Equal Employment Opportunity Commission (EEOC) issued a cautiously optimistic report on Diversity in Law Firms. The EEOC’s report shows that in the past 20 years there has been “a substantial increase in the employment of women and minorities in private sector law firms” including elite law firms in New York, Chicago, Washington, and Los Angeles. At the same time, the EEOC’s report also shows, however, that much more can and must be done by large and small firms alike, particularly in terms of attrition.

As explained by the EEOC, “male minority associates [are] more likely to have departed their employers within 28 months . . . and were far more likely to have departed within 55 months of their start date . . . [and] [n]early two-thirds . . . of female minority associates had departed their employers within 55 months compared to just over half . . . of women overall.”
An even greater problem exists with respect to what the EEOC calls the “major issue in law firms generally [concerning] the movement from an associate attorney to partner.” According to the EEOC’s report, for both minorities and women the odds of becoming a partner in a private law firm are still stacked against them.

These concerns led the EEOC’s current Chair, Cari M. Dominguez, to issue a call-to-arms in the legal profession. Speaking recently at a national conference of the American Bar Association, Dominguez said: “[w]e must all make a constant, unwavering effort to ensure that our nation’s law firms are open and inclusive to all individuals.” She also pointed out, as graphically illustrated in the EEOC’s 2003 Diversity Report, that although significant strides have been made in the employment of women and minority attorneys by private law firms over the past 20 years (especially at large firms), as a profession, “ we must also be mindful of how far we have to go.”

More recently, in December 2004, the ABA Commission on Racial and Ethnic Diversity in the Profession issued its third report entitled “Miles to Go: Progress of Minorities in the Legal Profession.” The 3rd “Miles to Go Report,” written by New York Law School Professor Elizabeth Chambliss, “takes stock of the profession’s progress as of August 2004” and “provide[s] a current, comprehensive picture of the status of minorities in the profession.” Based on a comprehensive review of academic, government, professional and popular data, the most recent Miles to Go Report includes the following substantive findings:


? Minority representation in the legal profession is significantly lower than in most
other professions (9.7 % among lawyers, compared to 20.8 % for auditors and accountants, 24.6 % for physicians and surgeons, and 18.2 % for college and university teachers).

? Minority entry into the profession has slowed considerably since the 1980s and
mid 1990s.

? The initial employment of minority lawyers still differs significantly from that of
whites.

? Minorities remain grossly underrepresented in top-level private sector jobs, such
as law partner and corporate general counsel.

? Progress has been especially slow for minority women in the profession
(especially in the areas of attrition from private law firms, where minority women outnumber all other groups, and exclusion from top private sector jobs)

The Panel Discussion: The panel will discuss the reasons for these problems and realities, and some of the steps necessary on the part of law schools, bar associations, law firms and corporations and individuals to address and retard these trends.

II. The Current Debate Over Affirmative Action Post-Grutter and Gratz
(Estimated time: 50 minutes)

Summary: In Gratz and Grutter, both decided on June 23, 2003, the U.S. Supreme Court strictly scrutinized and resolved 14th Amendment/Equal Protection challenges by classes of White student applicants to the pro-diversity admissions policies at the University of Michigan Law School (Grutter), and at one of the University of Michigan’s undergraduate colleges (Gratz). A 6-3 majority in Gratz, in an opinion written by former Chief Justice Rehnquist, struck down a quota-like point system under which qualified underrepresented minority applicants (Blacks, Hispanics, and Native Americans) were automatically awarded 20 points (out of a possible 150) in the admissions process based solely on their race or national origin. According to the Court, this use of race and ethnicity in the university’s admissions program was unconstitutional because it was not tailored narrowly enough to any compelling governmental interest and failed to afford individualized consideration for all applicants.

In Grutter, however, the law school case, a 5-4 majority of the Court upheld the use of race as a “plus” to be considered together with other factors in the law school’s more flexible and holistic admissions process. When race and ethnicity are used in such “a flexible, nonmechanical way” and all qualified applicants compete for admission and are considered individually, the Grutter Court held that the 14th Amendment is not violated. The Grutter Court also upheld the law school’s use of numerical goals (not quotas or set-asides) designed to achieve an undefined “critical mass” of minority students, observing that paying “[s]ome attention to numbers, without more, does not transform a flexible admissions system into a rigid quota.”

Importantly, majorities of the Court in both Grutter and Gratz expressly acknowledged that colleges and universities have a “compelling interest in securing the educational benefits of a diverse student body.” For this proposition, both Gratz and Grutter relied on and endorsed the Court’s 1978 decision in Regents of the University of California v. Bakke, where a narrow majority led by Justice Powell held that “the attainment of a diverse student body . . . is a constitutionally permissible goal for an institution of higher education.” The Court in both Gratz and Grutter also expressly endorsed the race-plus admissions plan at Harvard College, which was approvingly referred to by Justice Powell in Bakke more than 25 years ago. Under that plan, as Justice Powell noted in Bakke, the legitimate interest of educational diversity “may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.”

Both Grutter and Gratz thus provide renewed vigor and a clearer road map for the use of such race-conscious and ethnicity-conscious programs in law schools and other institutions of higher education. Since Grutter and Gratz were decided, however, the debate over the need for and legitimacy of affirmative action in law schools has heated up, with each side taking polar views on the issue. Compare UCLA Law School Professor Richard H. Sander’s article, A Systemic Analysis of Affirmative Action in American Law Schools (“Systemic Analysis”), 57 STANFORD L. REV. 367 (2004), and the article by Professors David L. Chambers, Timothy T. Clydesdale, William C. Kidder, and Richard O. Lempert, The Real Impact of Eliminating Affirmative Action in American Law Schools: An Empirical Critique of Richard Sander’s Study, ___ STANFORD LAW REVIEW ___ (2005). And see The Black Student Mismatch Myth in Legal Education: The Systemic Flaws in Richard Sander’s Affirmative Action Study, by Cheryl I. Harris and William C. Kidder (Winter 2004/2005); and Blend It, Don’t End It: Affirmative Action and the Texas Ten Percent Plan After Grutter and Gratz, 8 Harvard Latino Law Review 33 (2005), written by the Mexican American Legal Defense and Educational Fund, Americans for a Fair Chance, the Equal Justice Society, and the Society of American Law Teachers.

The Panel Discussion: The Panel will discuss the legal, societal and statistical contours and underpinnings of this sharp debate, as well as areas of agreement and grounds for possible reconciliation towards achieving a unified view on the best practices of law schools in achieving greater racial and ethnic diversity.

III. Drilling Down The Pipeline From Kindergarten to Law School: Where are the Holes and How Do We Fill Them? (Estimated Time: 40-50 minutes)

Summary: Few would argue that the quality of one’s education plays a pivotal role in determining a child’s life trajectory. Although the U.S. Supreme Court’s 1954 decision in Brown v. Board of Education held out the promise of equal educational opportunity for all, regardless of race and color, many African Americans still continue to receive a substandard education. This troubling fact is vividly demonstrated by the persistently large racial and ethnic achievement gap found in school districts across the nation.

The U.S. Commission on Civil Rights, created on the heals of the Court’s 1954 decision ion the Brown v. Board of Ed. case, has since its inception been focused on ways to promote equality in education, including advocating the preservation of affirmative action programs. See the Commission’s report entitled The Commission, Affirmative Action, and Current Challenges Facing Equal Opportunity in Education (March 2003). Whether the Commission will continue being an advocate for such programs remains to be seen

However, recent statistics issued by the Law School Admissions Council, and by the publishers of both the ACT and the SAT, reveal that a disturbing but undeniably disproportionate number of Blacks, Hispanics and Native Americans are among the millions of American kids not even making it through high school in and era in which a four-year college degree is an imperative for achieving (or maintaining) a middle-class lifestyle, let alone a legal career. And, according to a new report from a pair of Washington think tanks -- the Center for American Progress and the Institute for America’s Future – an urgent new commitment to public education, much stronger than the No Child Left Behind Law, must be made if the slide is to be reversed.

The Panel Discussion: The Panel will identify and discuss the steps along the pipeline to law school where minorities are disproportionately failing and winnowed out and, from K-12 to college, and then to the controversial LSAT, and the affirmative steps needed to plug the holes along the way.

IV. Conclusion: Bringing it All Together (Estimated time: 30 minutes)

Summary: Achieving true racial and ethnic diversity in the legal profession will require a concerted, more holistic affirmative effort by bar associations, corporations, law schools, researchers and academia, and the courts.

The Panel Discussion: -- The Panelists will offer their own views on the long-term possibilities, legal impediments, and practical realities associated with the goal of achieving full and equal participation by minorities in the profession. The ultimate, hoped-for byproduct of this discussion will be the development of a blueprint for making this long-term goal a reality

01-03-2006

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Raymond & Prokop, P.C.

Employee Rights To Email Privacy
ELECTRONIC PRIVACY – “Snoop” Out Problems Using Your Company’s Email
By David D. Sprague

Remember that “secret family recipe” you sent from your work computer to a co-worker or that joke that you forwarded to “just one” friend – more than your intended recipient may have read it. Most employees are surprised to find that there is little or no protection their right to e-mail under federal or state law.



Employees have no right to privacy when using their company’s e-mail system and no one is immune to the repercussions of its misuse. That statement was never more clear than last year, when Boeing forced out its CEO, Harry Stonecipher for behavior that was “inconsistent with Boeing’s Code of Conduct.” Information that had been forwarded to the Board of Directors revealed a “personal relationship” between Stonecipher and a female executive of the company. Following an investigation, e-mail he probably thought was “personal” eventually cost Stonecipher his job.

Today companies monitor all of its network systems whether it is for spam and virus protection or reviewing outgoing e-mail. Software to assist in the monitoring of e-mail is relatively cheap and it is certainly cheaper than dealing with widespread computer viruses and loss due to disclosure of company information. In addition to these concerns, employers have other significant legitimate reasons to monitor their employees’ e-mail usage. Monitoring can help employers maintain employee productivity, prevent workplace harassment, assist in meeting the requirements of litigation and Sarbanes-Oxley and prevent employees from downloading and using illegally obtained software. Because of these reasons, employees generally have no reasonable expectation of privacy of e-mail in the workplace. If online activity occurs during work hours and with the use of company equipment, the employer has the right to ‘snoop.’

Most employees have been unsuccessful in cases filed against an employer who snooped their e-mail. E-mail privacy claims have typically been brought for violation of federal or state wiretap statutes or the common law tort of invasion of privacy. However, Michigan’s eavesdropping statute that prohibits the willful use of any “device” to eavesdrop upon a “private conversation” without the consent of all the parties has not been tested on the subject of e-mail. Whether the Michigan statute applies to e-mail arguably turns on the employee’s reasonably expectation of privacy. A federal district court in Pennsylvania held that a terminated employee had no reasonable expectation to privacy when he sent and inappropriate response from his home computer to an e-mail message originating with his work supervisor. The court found that once the employee sent a message “over an e-mail system which was apparently utilized by the entire company, any reasonable expectation of privacy was lost.”



Overall, private sector employers are granted broad discretion in monitoring their employees and subjecting those employees to interrogation and searches. Nevertheless, it is advisable for employers to narrowly tailor the intrusion upon an employee’s privacy. Employees should sign-off on appropriate notices that inform the employee that the workplace, including computers, telephones, lockers, desks, and personal belongings brought into the work area, are subject to monitoring and reasonable searches. This simple notice can minimize the likelihood that an invasion of privacy claim will prevail by reducing the employees’ legitimate expectations of privacy in the workplace.


01-03-2006

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Nexsen, Pruet, Adams & Kleemeier, P.L.L.C.

Biesecker, Gauffreau Elected Members of Nexsen Pruet
Greensboro, NC January 3, 2006

Eric H. Biesecker and Stuart C. Gauffreau, both attorneys in the Greensboro office of Nexsen Pruet Adams Kleemeier, have been elected Members (partners) of the firm.

Biesecker is a commercial litigator who focuses his practice in the areas of construction law and real estate litigation. Gauffreau concentrates his practice in the area of business litigation with an emphasis on complex contract disputes.

"The election of Eric and Stu reflects the confidence we have in their professionalism and legal skill," said Leighton Lord, chairman of the board of Nexsen Pruet. "They have solid, proven experience in the areas of practice that are critical to business."

Biesecker earned his undergraduate degree in economics from Wake Forest University and his J.D., with honors, from the University of North Carolina School of Law. He has lectured frequently on a range of topics that include North Carolina lien law, payment and performance bonds, and construction claims documentation.

Gauffreau earned his undergraduate degree in political science from Duke University and his J.D., with honors, from the University of North Carolina School of Law. Additionally, he clerked for the Hon. Graham C. Mullen, Chief United States District Judge for the Western District of North Carolina.

Gauffreau was also an active duty Army intelligence officer - including service in the Persian Gulf during Operation Desert Storm, where he was awarded the Bronze Star - and is currently a judge advocate general officer in the Army Reserve.

Nexsen Pruet Adams Kleemeier is one of the largest law firms in the Carolinas, with more than 170 attorneys and offices in Charlotte and Greensboro, N.C. and in Columbia, Charleston, Greenville, Hilton Head, and Myrtle Beach, S.C. Nexsen Pruet Adams Kleemeier provides a broad range of legal services to the business community and represents companies and other entities in local, state, national, and international venues.

01-03-2006

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Darby & Darby, PC

Darby & Darby Announces Appointment of Two New Principals
Intellectual property law firm Darby & Darby P.C. announced that James E. Hanft and Jay P. Lessler became Principals of the firm on January 1, 2006.
James E. Hanft focuses his practice on patent litigation and counseling, but his experience also extends to trademarks, false advertising, licensing and patent procurement. In providing practical and cost-effective strategies for clients, Mr. Hanft draws on his technical background, which includes a B.S. in Electrical and Computer Engineering and experience as an engineer for International Business Machines. In his legal practice, Mr. Hanft handles litigation and counseling involving many diverse technologies, such as scanning circuitry for facsimile machines, advanced fuel cells, factory automation equipment, cellular telephone communication protocols and design, ultrafast lasers, scroll compressors, food supplements and medical devices.
Jay P. Lessler specializes in patent procurement and client counseling in the chemical, pharmaceutical, mechanical and computer software arts. He has particular experience in pharmaceuticals, including new drugs, syntheses, formulations, drug delivery systems and other chemical fields, including semiconductors, polymers, preservatives, water purification systems, nutritional supplements and organic syntheses. Mr. Lessler also has significant experience in Patent Office reissue and reexamination proceedings.
Managing Principal Andrew Baum announced to the firm that “Jim and Jay are superb lawyers who have demonstrated classic Darby dedication to teamwork and client service. If you’ve had the pleasure of working with them, you know they are the kind of people that we want as principals. We look forward to their contributions to the growth and strength of our firm.”

01-03-2006

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Clark Hill PLC

Paul F. Novak To Join Clark Hill PLC Lansing
LANSING, MI– Lansing City Attorney Paul F. Novak announced today his intention to join the Lansing office of Clark Hill PLC. Novak will join as Senior Counsel in the firm’s Administrative Practice Group and serve as an adjunct member of the Government Policy & Practice Group. Novak will join the firm in early 2006.
“We believe Paul’s knowledge of both city and state government will be a great addition to our Lansing office and assist us in serving our clients even better,” said Rick Coy, head of the firm’s Administrative Practice Group. “Paul’s experience places him in a unique position to provide wise counsel to those engaged in economic development in the Lansing area. I know his keen commitment to Lansing’s future will make him a tremendous resource in development projects involving the city and state.”
Novak has served as City Attorney since 2004. In his position he acted as general counsel overseeing all legal matters for the City including general litigation, economic development, municipal finance and ordinance prosecution and enactment. Prior to his position as City Attorney, Novak led the Michigan Department of Attorney General’s Special Litigation Division where he handled complex litigation assignments in the areas of antitrust enforcement and public utility regulation. He also practiced in the Environmental Protection Division as an Assistant Attorney General and served under three Attorneys General --- current Attorney General Mike Cox and former Attorneys General Jennifer Granholm and Frank Kelley. From 1986-1988 he was an associate with Dickinson Wright in Detroit.
In addition to his professional experience, Novak has served as an elected Lansing City Councilmember, City of Lansing Human Relations and Community Services Advisory Board Member, Recyclers of Ingham, Eaton and Clinton Counties Board Member, Tri-County Regional Planning Commissioner, and City of Lansing Economic Development Corporation Board Member.
Novak is admitted to practice in the State of Michigan, U.S. District Court - Eastern District, U.S. District Court - Western District, U.S. Sixth Circuit Court of Appeals, and the U.S. District Court, District of Columbia.
Novak earned his J.D. from Emory University School of Law, his M.A. in Economics from Michigan State University, and his B.A. from Michigan State University-James Madison College. He is a resident of Lansing, Michigan.

01-03-2006

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Bracewell & Giuliani LLP

Government Contracts Expert Co-Authors Book, Addresses Federal Market Opportunities
WASHINGTON (Jan. 3, 2006) –Anthony Anikeeff, a government contracts expert and partner in the Trial Section of the Washington office of Bracewell & Giuliani LLP, authored a chapter in the professional reference book Winning Legal Strategies for Government Contracts.

The book, recently published by Aspatore Books, provides an insider's perspective on the laws and practices that shape procurement at the federal, state and local levels. Anikeeff was one of 13 of the nation's leading government contracts lawyers chosen as an author. His chapter addresses "Maximizing Opportunities in the Federal Market."

With 25 years in law, Anikeeff counsels clients on issues such as obtaining contracts, joint ventures, merger due diligence, regulatory compliance, contract performance, dispute avoidance, export controls, classified matters and security clearances. Anikeeff also advises and represents clients in resolving bid protests, claims against the government, and disputes between companies at the administrative, trial and appellate levels. He advises clients regarding internal investigations and represents them in civil fraud and suspension and debarment investigations and proceedings.

Anikeeff brings further depth to his government contracts expertise through his earlier career work in spending 12 years with the Department of Justice (DOJ), Civil Division, as a senior trial counsel and assistant director. At the DOJ, he represented the United States in litigating and trying complex contract disputes, statutory and constitutional claims, and civil fraud and Congressional reference matters.

Aspatore Books specializes in books aimed at business professionals and executives. For more information on how to purchase Anikeeff's book, visit http://www.aspatore.com/store/details.asp?id=129.

Bracewell & Giuliani is among the nation’s largest law firms. Founded in 1945 in Houston, the firm now includes more than 400 attorneys with offices in Washington, Texas, New York, London and Kazakhstan. Bracewell & Giuliani's New York office opened in April 2005, when former New York Mayor Rudolph W. Giuliani joined the firm as a name partner. The firm's extensive complement of practices encompasses business, litigation and government relations. Bracewell & Giuliani serves a wide array of domestic and international clients including Fortune 500 companies and government and public entities.

01-03-2006

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Bernstein, Shur, Sawyer & Nelson, P.A.

Bernstein Shur Names Attorneys Daniel W. Walker and James F. Keenan, Jr. As New Shareholders
Portland, Maine - Attorneys Daniel W. Walker and James F. Keenan, Jr. have been named shareholders of Bernstein Shur, one of northern New England's largest full-service law firms.
Walker is a member of the firm’s Legislative and Regulatory Affairs Practice Group, maintaining a diverse practice in the areas of legislation, administrative and regulatory law, campaign finance and election law, public policy, and municipal law.
Walker previously served as Legal Counsel to the Speaker of the Maine House of Representatives, advising on constitutional, procedural, and policy issues, including nonprofit corporations and higher education. He also served as a litigation associate for a Salt Lake City law firm and clerked for the Utah Court of Appeals.
A resident of Freeport, Walker serves on the board of the Holocaust Human Rights Center of Maine. He is a 1991 graduate of Dartmouth College and received his law degree from the University of Maine School of Law in 1996. Walker grew up in Blue Hill, Maine and is a 1987 graduate of George Stevens Academy.
Keenan,a member of the firm's Intellectual Property, Technology, and Business Law Practice Groups, represents a national client base that includes businesses of all sizes, spanning a wide range of industries.
Keenan assists clients with identifying, protecting, and commercializing their intellectual property assets throughout the world and heads one of the region’s most active trademark practices. He is a member of the ABA, MSBA, and International Trademark Association.
A Gorham resident, Keenan serves as Vice President and Director of Big Brothers Big Sisters of Greater Portland, and as Director of the Portland Regional Chamber of Commerce. He is a 1995 magna cum laude graduate of Bowdoin College and received his J.D., cum laude, from Boston College Law School in 1998.
About Bernstein Shur
Bernstein Shur is one of northern New England’s largest full-service law firms, with more than 80 attorneys in Portland and Augusta, Maine and Manchester, New Hampshire. Established in 1915, the firm provides practical legal counsel to a diverse group of public and private clients throughout the region and around the world. For more information, visit bernsteinshur.com

01-03-2006

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