Author: Bill Cafaro
The most shameful case in recent history was Thomas Lowe, an Egan, MN attorney representing a divorce client, who had an affair with her that lasted seven months. After several arguments with the woman about the affair and his own marriage, Lowe said he was breaking things off. Two days later, he said he was withdrawing as her attorney. That day, the woman, who was vulnerable because of past abuse and mental health treatment, tried to kill herself. While hospitalized, she disclosed the affair.
In giving him an indefinite suspension, the Minnesota Supreme Court found that he had not only had sex with a vulnerable client; he had actually billed her for meetings during which they had sex.¹
Who’s Gotten in Trouble over Sex in New York Recently?
There were two cases in the past year which make for interesting reading. In one, a lawyer offered to represent a prostitute in a small town court upstate in exchange for her services – a good old fashioned barter arrangement. Unfortunately for the lawyer, his client was smarter that he was, and she contacted the police. The prostitute then recorded phone calls with the lawyer, agreeing that they would have sex in exchange for his legal services. As a result, the lawyer plead guilty to loitering for the purposes of prostitution and got community service. The disciplinary committee found that the lawyer had obviously violated the rule against requiring sexual relations as a condition of providing representation², but he was only given a censure, which is essentially a public reprimand. Although we don’t know it for a fact, it’s a safe bet she got the prostitution charge dismissed for turning the lawyer in, because he was certainly a bigger fish than she was.
In a much more serious case, Tara Lenich, a Deputy Bureau Chief in the Brooklyn District Attorney’s Office, was indicted in federal court and plead guilty to forging wiretap warrants. Because she had a romantic interest in a detective who she suspected of dating another female prosecutor in the same office, she forged judges’ signatures on fake orders authorizing her to eavesdrop on their cell phones and falsified warrants for their text messages. She told her colleagues in the office that she was working on an investigation so secret that no one else could know about. A staffer in the DA’s office became suspicious when she saw another prosecutor’s personal phone number on the eavesdropping warrant. She faces a maximum of 10 years on the guilty plea. Although her sentence will likely be far less than that, she will definitely lose her law license because anyone convicted of a felony³ is subject to automatic disbarment under New York law.
So What’s the Rule: Is Sex Allowed4 Between a Lawyer and a Client?
There is a strict prohibition 5 in New York against having sex with a divorce client, because divorce clients are often emotionally vulnerable, and there is an increased risk that the client will be exploited. However, even this rule has an exception if the sexual relations started before the client-lawyer relationship , so a lawyer could legally represent his/her lover in the divorce that followed in the wake of their adulterous affair. Also, any sexual relationship6 that begins after the representation is over would not be breaking any rule, even in a divorce case.
What About Sex with Clients in Non-Divorce Cases?
While there is technically no rule against it, any lawyer that starts a sexual relationship with a current client is entering into a grey area. As one court said “because a sexual relationship between a lawyer and client creates the risk of impairing the professional judgment of the lawyer, and rendering the client unable to make rational decisions related to his or her case, the relationship may be detrimental to the client’s interests. As such, “sexual relations between lawyers and their clients are dangerous and inadvisable””7 If the lawyer is accused of doing anything else that’s against the rules, having sex with that particular client will add a “sleaze factor” to the disciplinary case that won’t lead to any good places.
Are Doctors Allowed to Have Sex with Their Patients?
Although the concern used to be confined to psychiatry, since 1991 the American Medical Association has taken a much tougher position and adopted a blanket rule. “Sexual contact that occurs concurrent with the patient-physician relationship constitutes sexual misconduct.” 8That same opinion goes so far as to say that “Sexual or romantic relationships with former patients are unethical if the physician uses or exploits trust, knowledge, emotions, or influence derived from the previous professional relationship.” In fact, the AMA goes so far as to regulate sexual and romantic relationships between doctors and key third parties who accompany their patients.9 What will happen to a doctor who dates a patient seems to vary quite a bit, though, according to the particular state and the particular circumstances.
-  In re Disciplinary Action against Lowe, 824 N.W.2d 634, 2013 Minn. LEXIS 3, 2013 WL 167954 (Minn. 2013)
-  Rule 1.8[j][i], Matter of Shaw, 138 A.D.3d 133, (4th Dep’t 2016).
-  NY Judiciary Law § 90(a), (e)
-  This Post only talks about New York, and these are only general rules and do not constitute legal advice. Before getting the room, check with your lawyer if sex is allowed in your state and your particular circumstances.
-  Rules of Professional Conduct , 12 NYCRR 1200.0, Rule 1.8[j][iii].
-  12 NYCRR 1200.0, Rule 1.8[j].
-  Matter of Raab, 139 A.D.3d 116, 119, (1st Dep’t 2016).
-  AMA Journal of Ethics, Opinion 8.14 – Sexual Misconduct in the Practice of Medicine, Issued December 1989; updated March 1992 based on the report “Sexual Misconduct in the Practice of Medicine,” adopted December 1990.
- [9 ] AMA Journal of Ethics, Opinion 8.145 – Sexual or Romantic Relations between Physicians and Key Third Parties Issued December 1998 based on the report “Sexual or Romantic Relations between Physicians and Key Third Parties,” adopted June 1998.
Author: William Cafaro
How Often Has he Ruled in Favor of the Worker in Employment Cases so Far?
As an appellate federal judge on the 10th Circuit Court of Appeals, (where he was appointed by George W. Bush) he decided 23 employment cases, ruling against the worker in 21 of them.
Even though his opinions have a sympathetic sounding tone toward the worker’s plight (unlike the biting sarcasm the late Judge Scalia used), he almost always comes around to explaining why the employer should win. The New York Times ran an article indicating that Democrats would attack him as “No Friend of the Little Guy”.
Can You Give us an Example?
The trailer brakes froze on a big rig, and the truck driver was told to stay on the side of the road with the cargo. After 3 hours in subzero weather, when his torso was numb and he couldn’t feel his legs, the dispatcher told him to keep waiting in the truck, even though the heater wasn’t working, or to drive the rig with the frozen tractor brakes, which was obviously dangerous. Fearing for his health, he drove the tractor off and left the trailer, and was fired for abandoning the cargo. He filed with OSHA under a federal law that says a driver who refuses to operate a vehicle because he is afraid of serious injury to himself or the public can’t be fired for that, and the company had to reinstate him with back pay. When the Company appealed, the driver still won at the federal appeals court, but Judge Gorsuch ruled for the company. His reasoning was that the law literally said that it was for the protection of the driver who refused to operate an unsafe vehicle. Because the driver had the choice of driving with frozen brakes or staying with the cargo and freezing, one of the choices he was given was not illegal, so the company should have been allowed to fire him.
What Major Employment Issues Will He Decide if He is Confirmed?
Employees have a major problem now with the issue of “Forced Arbitration”, i.e., many employees, when they are hired, now have to sign papers giving up their rights to go to court if they have any reason to sue the boss; they will only be able to go to an arbitrator, which also stops them from bringing any class actions. For many reasons, covered in an upcoming blog on “Forced Arbitration”, this is very unfair. However, the National Labor Relations Board (NLRB) has held that these forced arbitration agreements violate the federal law which prohibit interference with or restraint of employees’ rights to organize and engage in concerted activities. There is disagreement among the federal appeals courts on this issue, so the Supreme Court has already accepted it, but it has been postponed until the October 2017 term after Gorsuch is confirmed, because it will be a 4-4 if the vote is taken now. This would leave the “split” between the circuits unresolved. The conventional wisdom is that Gorsuch, if confirmed, will rule in favor of enforcing the forced arbitration agreements, and he has made it very clear that he would like to limit or abolish the rule requiring judges to give deference to federal agencies like the NLRB.
A Public Union’s Right to Collect Dues From Non-Member Employees
This is another big issue. The Union’s argument is simple: All of the employees are getting the benefit of the collective bargaining the union does, like wage increases. Why should some of the Employees be able to get a free ride? Conservatives do not want all of the employees to pay union dues because, if union dues are voluntary, many people will generally stop paying them, and as a practical matter, this will mean the end of public unions. Conservatives have an obvious interest in destroying unions because they tend to contribute to Democrats. The recent test case would almost certainly have resulted in an anti-union decision, but it was a 4-4 tie, only because Scalia died between the oral argument and the date the decision came down. When this issue comes up again, Gorsuch, if confirmed, will probably vote against the public unions. If this trend continues in the Supreme Court, which is likely, it is this writer’s personal opinion that within a few more years, private unions will no longer be able to collect dues from dissenting members or non-members. After that happens, all unions will probably go the way of the dinosaur. In the public sector, many union members who resent paying union dues will face a cold hard realization when their wages are sharply cut to balance budgets.
 Surface Transportation Assistance Act (STAA), 49 U.S.C. §31105, (a)(1)(B)(ii).
 TransAm Trucking, Inc. v. Admin. Review Bd., United States DOL, 833 F.3d 1206, 1215, 2016 U.S. App. LEXIS 18838, *22, 41 I.E.R. Cas. (BNA) 1295 (10th Cir. 2016).
 Buy Low Markets, Inc. and Palacios, NRLB, San Francisco Office, Case 21–CA–173346.
 National Labor Relations Act, 29 U.S.C. § 158(a).
 Friedrichs v. Cal. Teachers Ass’n, 194 L. Ed. 2d 255, 2016 U.S. LEXIS 2264, 136 S. Ct. 1083, 84 U.S.L.W. 4159, 205 L.R.R.M. 3594 (U.S. 2016),
Over the last six years, Mr. Cafaro has applied his litigation skills toward representing employees aggressively in overtime and discrimination cases. He has represented hundreds of workers successfully in individual wage and hour cases, including class and collective actions. He also litigates discrimination cases in both the federal and state courts.
Fluency in Spanish helps Mr. Cafaro to communicate with clients in their native language.
Important New Rights for Freelancers in NYC
New York City Passes Freelancer Wage Protection Law
The new law covers individuals who provide services, and is only available in the City of New York:
New York City | Queens | Brooklyn | The Bronx
What Does This New Law Mean for Me, as a Freelancer?
It basically gives you the same state law labor rights as employees have. This is HUGE. It gives you the right to double damages – $2,000.00 for every $1,000.00 of the agreed price of the work.
If you win, the company will have to pay you a 100% penalty, plus your attorneys’ fees and your court costs.
Why will it be different now?
What if the company never gave me anything in writing saying how much I’d be paid?
What Practical Difference Will this new “ Freelance Isn’t Free” law mean to me?
Now, a lot of companies just aren’t paying you because you have so few legal rights, and they’re just not worried about you suing them. Until this law was passed, most lawyers were not willing to do these cases for a percentage of what they got for you at the end (this is called a “contingency fee”, explained above); they wanted you to pay their legal bills by the hour up front, which you couldn’t afford to do. THIS CHANGES ALL THAT.
If I was hired to do the job by a single individual, as opposed to a company, will this law apply?
Yes, it will.
I consider myself a Freelancer, but how do I know if I can use this new law?
When is this law going into effect?
On May 16, 2017. It will only apply to contracts entered into on or after the effective date
“If you are one of the bottom 99% of the workforce and find yourself at the mercy of the 1%, who own and manage businesses, it is our law firm’s mission to represent you and protect your legal rights. We understand how easy it is for the powerful to take advantage of the little guy. When you need legal help to resolve a troubling employment issue, we are here for you. We are experienced trial lawyers who take pride in fighting for our clients.” ~ Bill Cafaro
Where can I find the new law?
New York City Passes Freelancer Wage Protection Law: “Freelance Isn’t Free” Here’s the link
Author: Bill Cafaro
What Rights Do I Have if This Causes Me a Problem at Work?
Employees of Private Businesses:
What about the First Amendment? Can’t I say whatever I want?
Do I have Any Legal Protection at Work at All?
What Political Activity is Protected? Read More
Example: A records clerk for the Nassau County legislature was fired from his job less than four months after an election in which Republicans took control of the Legislature, and claimed that he had gone door to door for Democratic candidates, volunteered at phone banks, and distributing campaign literature. The Legislature argued that it had let him go due to budget cuts, the fired clerk argued that the need for budget cuts arose only because the Legislature had hired three new employees—all Republican. His claim was valid Fishman v. County of Nassau, 2013 U.S. Dist. LEXIS 47071, 2013 WL 1339466 (E.D.N.Y. Apr. 1, 2013),
- Absolutely not. Remember also that there will be generally little or no protection for any political activities conducted during work hours, on the employer’s premises, or using the employer’s equipment or materials; It gives you protection for what you do on your own time. Whether a simple one time statement of political affiliation at work is protected is not really clear from the law, and can probably be argued either way, but the more extensive the speech is at work, the better chance the boss will win. If the employee is wearing a campaign button for a particular candidate and the employer says to take it off, they should do it and put it back on when they leave work.
Remember – The General Rule is That There is No Free Speech Right When You Work for a Private (non-government) Employer on His Time. The law we’re talking about here provides some protection, but that protection is limited; it is by no means absolute.
Are Government Employees (Federal, State, City, County, etc.) Political Speech Rights Protected?
But here are a few things to keep in mind:
- The speech always has to be about a matter of public concern, and if it is, the employee’s right, as a citizen, to engage in the speech has to be weighed by the Court against the interests of the State, as an employer, in promoting the efficiency of the public services it performs, Pickering v. Bd. of Educ., 391 U.S. 563 (U.S. 1968).
- This can also cover rights of political association; and
- In order to be protected, it must generally be on the employee’s own time, without using the employer’s premises or materials; and
- Anything a public employee says in the course of his/her employment will not be protected. Example: If an employee of the Mayor’s Office makes any statement on the news in his/her official capacity, the Mayor can fire or discipline them for anything they say or don’t say, whether it’s true or not. Remember also that policy making and confidential employees probably can be dismissed just based on their political affiliation where the employer can show that party affiliation is an appropriate requirement for the effective performance of the public office involved, Vezzetti v. Pellegrini, 22 F.3d 483, 1994 (2d Cir. N.Y. 1994).
If you have strong political views which are very different from those of your employer, you should probably avoid any confrontation and get legal advice first as to how to best protect yourself. Call the Law Offices of William Cafaro at 212-583-7400 before you take any action like this.
Author: New York Employment Discrimination Attorney: Leeds Brown Law
A recent ruling against the Equal Employment Opportunity Commission (EEOC) has inspired mixed reactions. The case (EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., E.D. Mich., No. 14-13710, 8/18/16) centered on whether a Michigan funeral home violated federal employment bias law because it required its biological male employee to wear a suit at work.
The EEOC claimed that the funeral home was sex-stereotyping when it fired the employee, who was transitioning from male to female, because she failed to conform to their dress code that required men to wear suits. The EEOC’s position was that the funeral home was discriminating based on gender identity and that that was sex discrimination under Title VII of the 1964 Civil Rights Act. Read More
Religious groups generally and Alliance Defending Freedom specifically claimed the ruling was “a significant victory for religious liberty”. They chastised the Obama Administration for attempting to expand the reach of Title VII without going through Congress.
However, employment law attorneys and members of the ACLU felt the implications of the decision were “staggering,” “disappointing” and “dangerous”. Read More
Contact the Discrimination Law Attorneys at Leeds Brown Law, PCIf you feel you have been subjected to unlawful discrimination in the workplace based on race, gender, age, or disability you should speak to an experienced NYC discrimination law attorney. At Leeds Brown Law, we provide aggressive and effective legal counsel to individuals who believe they have been subjected to unlawful discrimination at work. Call us at 516-873-9550 or 212-661-4370 (toll-free at 1-800-585-4658) to schedule a consultation.
Our Blog—A Place to Learn More about Our Practice
Employment Law | Personal Injury | Medical Malpractice | Construction Site Accidents | Premises Liability | Nursing Home Neglect and Abuse | Motor Vehicle Accidents
When you are involved in a legal dispute, whether you’re experiencing unfair treatment at work, or you’ve been hurt because of someone else’s carelessness, you want to be represented by attorneys who understand the law and the process, and who have proven their ability to get results for their clients. That’s exactly what you’ll get when you hire the Law Offices of William Cafaro. We’ve obtained several multi-million dollar settlements and verdicts for our clients, and always use our considerable experience, knowledge, skill and resources to pursue maximum compensation for our clients.
In this blog, we’ll offer insights into legal issues, so that you can be a more effective participant in your legal issue. We’ll address a wide range of topics, including:
- How to know if you have an overtime, discrimination, harassment, wrongful discharge or other work-related claim
- The best ways to protect your rights when you are being treated unfairly at work
- What you can expect in terms of damages or other legal redress when you have a problem at work
- What to expect from your employer during a work-related dispute
- Any relevant changes in employment law. Read More:
Experienced and Effective Employment and Personal Injury LawyersOur attorneys and staff take a comprehensive approach to employment and personal injury actions, combining thorough preparation with extensive courtroom skills. We understand the stress and anxiety that accompany a personal injury, and place a premium on being available and accessible when you need answers to your questions.
To learn how we can protect your rights, call (212) 583-7400 for a free case evaluation or contact our offices online.