Connecticut

A recent documentary is highlighting the issue of racial bias in the juvenile justice system. In reporting a piece for the Connecticut Law Tribune, I learned that Connecticut is widely praised for making great steps in improving its juvenile justice system. But statistics show that, despite those reforms, racial bias hasn't been erased. More kids of color than white kids are sent into the system and sent into the system for longer.

Here's an excerpt of the full piece: 

By most accounts, Connecticut has made tremendous progress in reforming its juvenile justice system. But there's one serious problem remaining: racial disparities in the youths who are sent to juvenile lockups.

That's the thrust of a recent Connecticut Public Broadcasting Network documentary, a production sponsored by the Connecticut Juvenile Justice Advisory Committee and paid for with federal funds.

According to the documentary, police are 3.24 times more likely to write incident reports when they find a black juvenile misbehaving than when they have similar encounters with white kids. Latino juveniles are 2.4 times more likely to have incident reports filed about their actions than their caucasian counterparts.

Further, the documentary reported, prosecutors are far more likely to transfer black juveniles charged with serious, Class A and Class B felonies to adult court than their white counterparts. And the state Department of Correction is four times more likely to place a black youth who committed a serious offense in a secure juvenile facility than a white youth, and three times more likely to put a Latino teen in such a facility than a white teen.

The documentary, "The Color of Justice," focuses on data presented in a 2011 report by the state Office of Policy and Management. The report found that racial disparities were present in half of the 18 points in which decisions are made in the juvenile justice system.

"We've … accepted the data and we own it and we're each trying in our separate agencies or venues" to address the issue, said Superior Court Judge Bernadette Conway, the chief administrative judge of the juvenile division.

Cathy Jackman, the independent producer and editor of the documentary, said Connecticut is one of the states considered to be at the forefront of addressing the issue of racial bias in the juvenile justice system.

"I think that the state was actually very courageous in exposing themselves," said Jackman, who noted that while the documentary was government-sponsored, she retained editorial control. "The Office of Policy and Management did not have to reveal these numbers."

Marc Schindler, executive director of the national Justice Policy Institute, said Connecticut has implemented many best practices to reform juvenile justice. For example, the state has aggressively worked to move most 16- and 17-year-olds out of the adult court system, increased community-based programming, and reduced its reliance on incarceration when dealing with juvenile lawbreakers.

Connecticut is a "true turn-around story in many respects," Schindler said. "Through the '80s and '90s, Connecticut was known unfortunately for having a quite dysfunctional system for young people who got in trouble with the law." And this was in a state that is one of the wealthiest in the country, he said.

Given the success in improving other aspects of the juvenile justice system, Schindler said he's "optimistic" Connecticut will make progress on racial disparities.

The documentary emphasizes that racial disparities often are not the result of overt prejudice but stem from implicit bias.

"We only use a small portion of our brain consciously," said Conway, the juvenile judge. "When we interact with people we make unconscious, instantaneous judgments we may not be aware of."

Connecticut homeowners who still haven't been paid by their insurers over damage from Superstorm Sandy are running out of time to sue their insurers, I reported for the Connecticut Post and the Stamford Advocate.

Here's the full story:

Homeowners whose insurance companies still have not paid them for Superstorm Sandy damage and may need to sue their insurers will soon run out of time to do so.

Even though Connecticut law provides for six years for lawsuits to be filed over broken contracts, the state has a law on the books that lets insurers limit the time in which disputes about homeowner policies can be taken to court.

And it is industry practice to include in standard homeowners' insurance policies a time limitation on lawsuits, according to several Connecticut attorneys.

Ryan Suerth, a Hartford-based solo practitioner who represents policyholders in insurance disputes, said going to court is a "last-ditch effort" because no one wants to hire a lawyer after already going through a long process to try to get paid by one's insurer after a disaster.

But Suerth said "the only person who is going to look out for the policyholder" is the policyholder.

The law used to let insurers limit homeowners bringing lawsuits to within a year of disasters, but it was changed in 2009 to 18 months. Now homeowners' insurance disputes can't go to court unless they are started within "eighteen months next after inception of the loss," according to the statute.

"The moral of the story," says Leonard Isaac, an insurance litigator with law offices in Waterbury and West Hartford, is that "if your policy has a limit that's the minimum provided by Connecticut law, the lawsuit has to be served on the insurance company within 18 months of when your loss took place. That means it has to be delivered by the marshal to the insurance company by that time."

Policyholders thinking about taking their insurance company to court can't show up on a lawyer's doorstep a week before the deadline, Isaac said, because time has to be allowed for the lawsuit to be served on time to meet legal deadlines.

Isaac said he has had people consult him after major storms, particularly winter storms, when they've run out of time to sue. After major storms, many people think the "insurance company is moving slowly but they're moving," but then it can be too late to seek legal recourse, he says.

The National Flood Insurance Program, which is administered by the Federal Emergency Management Agency, only allows for lawsuits to be filed within a year of a policyholder's loss, Suerth added.

Gerard O'Sullivan, program manager of the Insurance Department's consumer affairs unit, recommends that consumers who are having problems with their insurance claims call the department. It will see if they can mediate the claim and bring it to a conclusion without the need for litigation, O'Sullivan said.

Gregory Podolak, an attorney representing policyholders with Saxe Doernberger & Vita in Hamden, suggests policyholders crack open their policies and see if they have a limitation-of-suit provision in there.

If they are running up against a deadline, policyholders can see if their insurers will agree to "toll" that part of the contract, Podolak said. An agreement to temporarily put on hiatus the requirement that policyholders only can go to court within 18 months of when Sandy struck would allow insurers to avoid premature lawsuits, he said. That's especially the case if "you are adjusting your agreement in good faith and cooperation," Podolak said.

Isaac suggests that policyholders can use public adjusters to help negotiate with their insurance companies.

Michael McCormack, who represents policyholders as well as insurance industry clients in regulatory proceedings with Hinckley Allen & Snyder in Hartford, said that insurance companies limit the time in which lawsuits can be brought because they "don't want to be subject to a claim six years down the road. They want to have notice and resolve claims."

Not all claims against insurance companies are limited, but in these situations, things get more difficult quickly. Policyholders can still sue over truly wrongful behavior by insurance companies like acting in bad faith, McCormack said, but such behavior is rare and is harder to prove.

Suerth said he finds it unfair to allow contractual limitations on the six-year statute of limitations because it "doesn't help the policyholders and there are other insurance policies out there that don't have any limitations at all."

There are other insurance issues arising out of Superstorm Sandy that people may not be aware of, attorneys said.

Many policyholders are not aware that, without going to court, they can invoke a clause in their polices if they're in a dispute over the value of their loss, McCormack said. Connecticut law requires that disputes over the amount of loss in standard homeowners' police go to an outside neutral process called appraisal.

Insurance companies don't always advise their insureds that a dispute over the value of loss can be taken to this form of arbitration, Isaac said.

"Instead they say this is all we're going to pay. They say take it or leave it," Isaac said.

The appraisal process is more consumer-friendly because it's less expensive than litigation, McCormack said.

Isaac estimates that half of the disputes he sees are over the value of the loss.

Both the policyholders and the insurance company get an appraiser, and there is a neutral umpire to make a final determination on the claim's value.

Both parties pay for their own appraiser, and a neutral umpire is paid by both sides to decide the dispute over the value of the claim, O'Sullivan said.

Natural disasters like Sandy are a reminder to make sure people have the insurance coverage they want, insurance experts say.

"One of the important things of any catastrophe like this" is for people to determine if they are comfortable with their deductibles and to understand that flood insurance is separate from a homeowner's policy and must be obtained separately, O'Sullivan said.

Michael E. DiGiacomo, a forensic accountant with BlumShapiro in Shelton who often is called in to evaluate claims, said that his impression of Sandy is that many businesses did not have the proper insurance coverage in place to recover for their losses.

For example, businesses wanted to keep their insurance costs down and forewent coverage of the interruption of their businesses, DiGiacomo said.

"Sandy just brought that to light because of how devastating it was," DiGiacomo said.

In light of Sandy it might be a good idea for businesses to go over their policies with their brokers to make sure they have the coverage they want, DiGiacomo said.

The Arizona Supreme Court has ruled that it doesn't violate due process for a Connecticut law firm to face a legal malpractice lawsuit in that state even though none of the firm's lawyers are licensed to practice in Arizona. Legal experts, however, said there is little chance that facing a lawsuit in another state will lead law firms to stop the practice of issuing opinion letters to out-of-state clients on tax shelters.

I covered the case in a piece for the Connecticut Law Tribune. Here's an excerpt: 

The Arizona Supreme Court has ruled that a Connecticut law firm with no lawyers licensed to practice in Arizona can nevertheless be the target of a malpractice claim from two Grand Canyon State residents. But the ruling is not likely to curtail the practice of law firms writing opinion letters for out-of-state clients in tax matters, according to legal experts.

In exchange for a $50,000 fee, Bridgeport-based Pullman & Comley and partner D. Robert Morris prepared an opinion letter for Arizona plaintiffs Bill and Sue Beverage some 13 years ago. The letter opined that it would be legitimate under federal tax law for the Beverages to take advantage of a tax shelter known as a custom adjustable rate debt structure.

However, the Internal Revenue Service rejected the couple's tax return and their declaration of substantial losses related to the tax shelter. They ended up being assessed $3 million.

In a two-page opinion, Chief Justice Rebecca White Berch affirmed that the Connecticut defendants are subject to Arizona's specific jurisdiction—even though the firm does not have an office in Arizona and does not have any attorneys licensed to practice law there. Pullman & Comley now have to face claims of civil racketeering, fraud, breach of fiduciary duty, conspiracy, professional malpractice and negligent misrepresentation in Arizona.

Adam Chodorow, a professor who teaches tax law at Arizona State University Sandra Day O'Connor College of Law, said the Arizona Supreme Court decision won't cause firms to step away from issuing opinion letters on tax matters. Instead, he thinks firms are going to insert choice-of-forum clauses—which stipulate the court or jurisdiction in which any subsequent legal actions will take place—when they advise out-of-state clients about tax shelters.

"Any firm that wants to can insert a choice-of-forum clause in any contract with a client," Chodorow said, adding that such clauses are typically upheld by the courts. In this case, such a clause might have prevented Pullman from "getting stuck in court in Arizona."

Chodorow also said law firms that issue opinion letters are going to weigh the costs of potentially being sued by an unhappy clients in a far-off state against the benefits of the business they get from issuing opinion letters.

"I guarantee you, if the money is there, and the client base is there, they'll either accept the risk or assert the forum clauses," he said.

Stephen Utz, a professor at the University of Connecticut School of Law who teaches federal tax law and policy, said the case of Beverage v. Pullman & Comley highlights the risks involved in opinion letters.

As far as the IRS is concerned, taxpayers are still subject to tax penalties even if they have an opinion letter from a law firm stating that a certain investment, deduction or other financial maneuver is legal, Utz said.

"Some law firms don't do letters of this kind in order not to disappoint clients and not mislead them that something is going to be great" when it won't, he said.

Other law firms, however, not only give opinions on tax shelters but design them and market shelters, Utz said.

The IRS has made it more difficult for tax lawyers to give advice on tax shelters, Utz said. The agency has specific penalties for "material advisors," which may include lawyers, who don't report to the IRS when clients have consulted them about certain tax shelters, he said.

The penalties were "intended to be intimidating and to persuade some tax practitioners not to do this," Utz said.

Facing lawsuits in out-of-state jurisdictions over tax-shelter legal advice gone wrong is not what will dissuade law firms from doing this kind of legal work, Utz said. But, he added, penalties from the IRS will.

Here's an excerpt of a story I wrote for the Connecticut Law Tribune about the Jewish Historical Society of Greater Hartford's oral history project documenting Jewish lawyers and judges in Connecticut:

When Gerry Roisman graduated law school in 1962, one of the partners at the law firm where his mother worked as a legal secretary said he would help Roisman find a job.

As he sat in the partner's office, Roisman listened as the lawyer called up a senior partner at one of the major law firms in Connecticut and extolled Roisman's credentials.

But "the thing turned from positive to negative, and he hung up the phone and he looked at me square in the eye and said: 'They would love to hire you. Your credentials are great, you're bright and you have all kinds of positive things going for you," including contacts in Greater Hartford, Roisman recounted.

The partner continued with the bad news, Roisman recalled: "But the answer I got was, 'My clients wouldn't like it and we're gonna pass.'"
The only thing objectionable about Roisman? His Jewish identity.

Roisman's story is going to be one of many that the Jewish Historical Society of Greater Hartford is documenting for an oral history project of Jewish lawyers and judges in Connecticut.

Estelle Kafer, the historical society's executive director, said the group continues to seek contributions of stories and experiences of Jewish lawyers. The project will culminate in the publication of a scholarly journal and an event on May 14 to celebrate the project.

The society has documented the rich histories of the Jewish members of other professions, including doctors who formed Mount Sinai Hospital because they could not get admitting privileges at other hospitals. "I think the general public doesn't realize the discrimination they faced," Kafer said.

Roisman said he also faced discrimination when he tried to represent banks. After law school, Roisman had a general practice that included criminal, personal injury, commercial, tax, estate planning, immigration, and family law fields. Roisman also was a leader in getting Connecticut to adopt no-fault divorce. Now his West Hartford practice focuses on family law and working with his son in the sports law field.

"Every [law] office I know of in the city of Hartford has overcome those biases and prejudices, but it was very real coming out of law school," Roisman said.

The first Jewish lawyer in the Hartford area practiced in the 1890s, so the goal of the project is to bring that history "forward for 110 years," Roisman said.

The first Jewish lawyers in the Hartford area were the product of Jewish immigration from Germany in the latter part of the 19th century. The numbers grew after a second wave of Jewish immigration from Eastern European countries in the early part of the 20th century, said Hartford Superior Court Judge A. Susan Peck, who is among those working on the history project.

Many Jewish lawyers worked their way out of extreme poverty and somehow managed to go to Ivy League law schools, Peck said.

There was a period in the 1940s, '50s and '60s in which Jewish lawyers weren't accepted in some law firms. As a result, Jewish lawyers began to form their own firms. Among them was Rogin Nassau and Schatz & Schatz, Peck said.

"Now these law firms, as the profession has evolved and as Jews have established themselves as valuable members in these professions … have merged into larger law firms," she said.

I wrote a piece for the Connecticut Law Tribune about Wilson Elser Moskowitz Edelman & Dicker looking to duplicate its lobbying success in New York's capital in Connecticut. The firm has opened a new office in Hartford, the second one in Connecticut. An excerpt of the piece:

Wilson Elser Moskowitz Edelman & Dicker is looking to duplicate the lobbying success it's had at New York's capital at Connecticut's seat of government, firm leaders said. In early January, the national law firm announced the opening of a new office in Hartford that will focus in part on governmental relations.

Wilson Elser "has the most successful lobbying firm in Albany," said David A. Rose, the partner responsible for forming the law firm's governmental relations practice in Connecticut. According to the New York State Joint Commission on Public Ethics, Wilson Elser has more than 160 lobbying clients in Albany.

As for the goals in Connecticut, Rose noted that Wilson Elser does not have a "niche lobbying practice" like some other firms.

"We're a law firm," Rose said. "As long as we can ensure there's not a conflict with any existing clients we're hopeful to work with as many and varied" lobbying clients as Wilson Elser does in Albany.

Rose has been involved in governmental affairs for 21 years either as a governmental lawyer or lobbyist. He worked as senior counsel for two Connecticut House speakers: Democrats Moira Lyons and James Amann. In 2007, he went to work as assistant counsel for then-New York Gov. Eliot Spitzer and stayed on through the tenure of Gov. David Patterson and then through the transition of Gov. Andrew Cuomo.

While there are a lot of similarities between Hartford and Albany, Rose said that "Connecticut has a much more transparent government" that is easier to access as a lobbyist or as a regular citizen. Unlike in Albany, anyone can walk into the Capitol building in Hartford without having to pass through metal detectors, he said.

If you spend enough time in the building, you will run into state leaders just by virtue of using the common elevators and corridors, Rose said.
"You have to be at the Capitol," Rose said, to have the opportunity to meet with top lawmakers, including the happenstance meetings in which elevator speeches for clients can be rolled out. There's nothing that beats the in-person interaction to "tell your client's story," Rose said.

Last month, I wrote a piece for the Connecticut Law Tribune about the lack of legal doctrine to govern cyber warfare--and what a UConn professor and law student are doing about it:

Forget Terminator-style cyborgs sent back in time on an assassination mission.

Cyber warfare is here, but the form it takes doesn't involve lethal robots. It's things like Stuxnet, a computer "worm" that is believed to have been created in 2010 to attack Iran's nuclear facilities. Or unmanned planes – navigated by software and "pilots" on the ground – dropping bombs.

But while cyber warfare is here, the law of war and the rules of engagement are largely undeveloped regarding cyberwar, according to David Thaw, a University of Connecticut visiting assistant professor of law whose scholarship focuses on cybersecurity regulation and cybercrime.

There is not even clarity in international law about when cyber warfare can be started. For example, Thaw asks, when would an attack on Google constitute an act of war instead of just criminal activity? What level of cyberwarfare is proportionate as a matter of law?

There is a "wide space that the law needs to catch up" on quickly, Thaw said.

The open legal questions have led Thaw and Joel Henry, a cyberspace operations officer of the 103rd Airlift Wing, Connecticut Air National Guard, and a UConn law student in his last semester, to research the law of armed conflict and cyberwarfare. They have presented their research at places like the Pentagon and NATO conferences.

Talking to experts in those forums made them realize that they needed to address not only what happens during a cyber warfare conflict, but about what leads up to the conflict.

Their collaboration started after Henry wrote a paper on cyber warfare for one of Henry's classes, and because Henry has served as a cyberoperations officer with the Connecticut National Guard and the U.S. Air Force for five years. Prior to that, Henry was an Air Force captain and a weapons loader for A-10 fighter jets from 2002 to 2008. Until this semester, Henry was an evening law student working full time as an engineer.

The aim of professor and student is to develop "a set of legal guidelines to help the international community and the individual nation-states" as they draft their own laws and policies about cyber warfare, Thaw said.

Due to the interconnectivity of many systems with the Internet — for example, power grids, water and fuel pipelines and emergency services — cyberwarfare could have unintended consequences. For example, Country A deploys a cyberweapon against Country B, but the weapon affects systems in Country C due to the interconnective nature of technology, Thaw said.

If the military is using a cyberweapon to target an electronic system or a computer system of an adversary, it must be sure that use of that weapon is not going to have unintended consequences for a civilian population, Henry said.

One issue with cyber warfare is the risk of collateral damage if excessive force is used in more densely populated areas, Thaw said. The same is true of conventional warfare, he said. "You don't drop an imprecise high-yield warhead in a major urban center … to take down one building," Thaw said. "You use a precision-guided ordinance" from an aircraft.

The law needs to require that in cyberspace as well, he said.

Henry said his contribution to the paper is in terms of drafting new cyberlaw of armed conflict and how that applies to military operations. The focus has been on judge advocates assigned to military units, Henry said.

Henry said his research has been informed by his personal experience of working with JAGs assigned to one of the Air Force's Air and Space Operations Centers. Their research has shown that, as the law stands currently, "JAGS probably wouldn't be equipped "to lawfully authorize cyber warfare attacks, Henry said. "What would that individual need to know from a legal standpoint to authorize the use of a particular weapon?" Henry asked.

Thaw added: "One of the reasons we have judge advocates in uniform advising commanders who have to make decisions about deploying military assets" is to ensure that military action is lawful and that unlawful harm is not done to civilians, Thaw said.

Another issue with cyber warfare is what happens if remote-controlled aircraft are taken over by unauthorized people. "New questions arise when controlling things remotely," Thaw said.

Another issue with cyber warfare is what happens if remote-controlled aircraft are taken over by unauthorized people. "New questions arise when controlling things remotely," Thaw said.

Thaw and Henry hope to publish their research sometime in the future. For now, they are revising on the basis of their meetings with experts.