New York Legal Update

NYCRR Available Online

Thanks to The Sienko Law Office Blog and Sui Generis for notifying us that the NYCRR (New York Code of Rules and Regulations) is now available in full online Here. This is an important addition to the free legal resources available online. The Department of State should be applauded for making this resource available.

Continuing Education For Dentists

The Department of Education today adopted new rules regarding the continuing education of dentists. The new rules increase the amount of continuing education course hours to 60 hours per each triennial registration period. In addition, the rules require that dentists complete certain coursework in New York State jurisprudence and ethics as it relates to the practice of dentistry, and beginning January 1, 2009 each dentist must become certified in cardiopulmonary resuscitation. The full text of the new regulations can be found by Clicking Here and scrolling down to page 16.

New York To Give Driver's Licenses To Illegal Aliens

Governor Spitzer and the Department of Motor Vehicles (DMV) Commissioner David Swarts yesterday announced a DMV policy change that will allow all New Yorkers the opportunity to apply for state driver licenses without regard to their immigration status. In addition, the Governor and Commissioner also announced plans to implement a new regime of anti-fraud measures to increase the security of the licensing system as this new population of drivers come into the system.

The DMV estimates that tens of thousands of undocumented, unlicensed and uninsured drivers are currently on New York’s roads, contributing to increased accidents and hit-and-runs as well as higher auto insurance rates. The implementation of the policy change will take place in two phases:

Phase 1 will begin immediately. Informational letters from DMV will be sent to the approximately 152,000 New Yorkers, who at one point had (or currently have) a New York State license, but are unable to renew it because of the previous administrative policy. DMV will notify these former and current license holders of the policy change and will begin the re-licensing process at the end of 2007. Those affected will still need to prove their identity, date of birth and fitness to drive before being issued a new license.

Phase 2 will begin six to eight months after Phase 1 and will open the application process to all New Yorkers.

Current State law requires license applicants to prove their identity, date of birth and fitness to drive, and to provide a social security number (SSN). The SSN requirement was added in 1995 as part of an effort to punish parents who were not paying child support. In 2002, a state regulation was adopted to allow applicants who are ineligible for a SSN to also apply for driver licenses. Following this step, the DMV then issued an administrative policy that effectively made it impossible for illegal immigrants to obtain driver licenses by stipulating that the only way to define “ineligibility” would be through obtaining a formal letter of ineligibility from the Social Security Administration, a letter that is only obtainable by individuals who have legal immigration status.

It is this last administrative policy that the DMV is changing. Starting in the phases discussed above, license applicants will check a box on the license application that states that the applicant is not eligible to receive a social security number. Instead of presenting a SSN or a letter of ineligibility, individuals instead will provide a current foreign passport and other valid and verifiable documents to prove identity.

In his Press Release the Governor called the new policy a "common sense change" that deals with a "practical reality that hundreds of thousands of undocumented immigrants live among us." The Governor went on to say:

After a comprehensive review, DMV has developed changes that will increase the security of our license system by obtaining better and more verifiable information from applicants, which will decrease the number of uninsured drivers on the roads, lower auto insurance rates for all drivers and, when necessary help law enforcement agencies in their investigations.

According to the Press Release, the benefits of this policy change will include:

• Safer Streets: In its report, “Unlicensed to Kill,” the AAA Foundation for Traffic Safety found that unlicensed drivers are almost five times more likely to be in a fatal crash than are validly licensed drivers.
• Lower Insurance Rates: The State Department of Insurance estimates that expanded license access will reduce the premium costs associated with uninsured motorist coverage by 34% which will save New York drivers $120 million each year. Other states with similar policies have seen their auto insurance rates drop as well.
• Safer Homeland: This policy change helps bolster homeland security by bringing more individuals into the system and, when necessary, assisting law enforcement efforts to locate those who present a real security threat.

As mentioned, the DMV will also adopt new anti-fraud measures to make the system more secure. It will utilize new state-of-the-art document verification technology, including photograph comparison tools and specially-trained staff with expertise in foreign-sourced identity documents, and a proposal to implement a residency requirement for all state license holders.

• The DMV’s secure “6-point ID requirement” will be based on an expanded list of valid and verifiable documents. Along with the other identity documents currently on the list, individuals’ identities will be verified using this new document verification technology to reduce the potential for fraud.
• The DMV has begun a pilot program to test photo comparison technology, which will prevent a person from obtaining more than one license under more than one name. Currently, 18 states use photo comparison technology as part of their fraud-protection system.
• The DMV will also train personnel in verifying foreign-sourced identity documents.
• Finally, as a further fraud-prevention measure, the DMV will propose to require a license applicant prove his or her New York State residency in order to be eligible for a state-issued license. Currently, 27 states have such residency requirements.

For a Video of an announcement of the policy change Click Here.

I have three questions or points about this change:

1. If auto insurance rates for New Yorkers do not fall appreciably, how likely is it that the DMV will revert back to the old policy?
2. How much confidence will you have in the personnel that the DMV will train in verifying foreign-sourced identity documents, and will there be enough trained personnel?
3. If illegal aliens will have valid driver's licenses, will you be able to use your New York driver's license as a form of ID for other purposes?

Department Of Corrections Proposes New Rules To Restrict Inmate Communications With Victims

On Wednesday (September 19th), the Department of Corrections proposed new rules to prohibit inmates from contacting their victims. Under the proposed rules, whenever a victim (or other members of the public) indicates that he/she does not want to receive any correspondence or telephone calls from an inmate, his/her name shall be placed on a Negative Correspondence and Telephone List for that inmate. The inmate shall then be prohibited from contacting persons on that List. The proposed rules also restrict inmates from making toll free calls and set time limits for telephone calls. The Department of Corrections will receive public comments on the proposed rules for 45 days (from September 19th).

The full text of the proposed rules can be found by Clicking Here and scrolling through pages 1-4.

Minor Changes To CLE Rules

The Appellate Divisions have made minor changes to the Rules for Continuing Legal Education.

The first change makes continuing legal education courses in substance abuse control fall within the area of Ethics and Professionalism rather than Law Practice Management.

The second change requires that effective January 1, 2008, the faculty of each course or program shall include at least one attorney in good standing, who shall actively participate in the course or program. And no course or program shall be taught by a disbarred attorney.

The full text of the changes can be found by Clicking Here.

State Ethics Commission Issues Guidelines For Use Of State Aircraft

In the wake of allegations that State Senator Joe Bruno improperly used State aircraft for political trips, the State Ethics Commission has issued guidelines for the use of State aircraft by public officials for State and non-State travel. The new guidelines are contained in the Commission's Advisory Opinion No. 07-03.

The Commission concluded that when a public official uses State aircraft for State and non-State travel, the following requirements must be met:

• (i) there must be a bona fide State purpose for the trip;
• (ii) the State purpose must be the primary reason for the trip;
• (iii) the public official must make an accurate apportionment of the time spent between State and non-State business and promptly reimburse the State for that portion of a trip not related to State business;
• (iv) such reimbursement must be based on current airplane charter costs; and
• (v) the official must provide the Executive Chamber with the details of the activities upon which the allocation between State and non-State business is based, information that the Commission expects will be available to the public through a FOIL request, except to the extent public disclosure would jeopardize the security of the public official.

The Commission also remarked that whether New York State should ban outright any use of State aircraft for any non-State business is a matter for the Legislature to decide.

Citibank To Participate In New IOLA Program

As reported yesterday, the Board of Trustees of the Interest on Lawyer Account Fund (IOLA) has adopted new standards for IOLA accounts requiring such accounts to bear higher interest rates. Today Governor Spitzer announced that Citibank has agreed to participate in the expansion of the IOLA program thus providing accounts with the required interest rate.

According to the Governor's Press Release, the new IOLA regulations will significantly increase the interest banks pay on the roughly $3.1 billion in escrow accounts lawyers use to hold clients’ funds and increase the IOLA fund’s grant-making to as much as $60 million per year from approximately $14 million in 2007. Citibank and JP Morgan Chase are the two largest holders of IOLA deposits.

Managing Director at Citibank, Hugh Donlon, said: “We are pleased to join Governor Spitzer in announcing that we have reached agreement with the IOLA Fund regarding this important initiative, which will greatly increase the amount of funds available for legal aid services for indigent clients, truly a worthy cause.”

For the new requirements for IOLA accounts, Click Here and scroll to page 28 of the PDF (Specifically look at 21 NYCRR 7000.9).   

New Standards For IOLA Accounts Adopted

The Board of Trustees of the Interest on Lawyer Account Fund (IOLA) has adopted new standards for IOLA accounts. It has in fact repealed the entirety of Part 7000 of 21 NYCRR governing the IOLA Fund, and replaced it with an entirely new part 7000.

The purpose of the IOLA Fund is to provide funding to not-for-profit entities that provide civil legal services to the poor. Created in 1983, the IOLA program requires an attorney to open an IOLA bank account to deposit nominal or short term funds held by the attorney on behalf of a client or third party. Funds that would thus otherwise generate no net interest can be pooled to generate interest income. The banks where the IOLA accounts are created are then required to send the interest earned to the IOLA fund, and this money is used to award grants to civil legal service providers. Historically, the interest rates paid on IOLA accounts have been equivalent to the type of interest on accounts bearing the lowest interest rates, i.e. "NOW" accounts. In the new standards, the IOLA Board is seeking to increase the interest rates payable on IOLA accounts.

Thus, the most significant revision in the new part 7000 will be to require attorneys to maintain their IOLA accounts only in banks that meet a "best customer" standard for the interest paid on such accounts. In other words, the interest rate paid on the IOLA account must be at least as great as the rate the bank offers its best customers on similarly-sized accounts at the bank. Thus, if an attorney or law firm maintain their IOLA account at a bank that will no longer be eligible to maintain IOLA accounts because they do not pay the best customer interest rate required by the rule, the attorney or law firm will need to change the location of their IOLA account to an eligible institution. The particular rule involved is 21 NYCRR 7000.9. All attorneys are encouraged to read the details of this new rule. The full text of the new part 7000 is available by Clicking Here and scrolling down to page 28 of the PDF.

The IOLA Board estimates that with the increased interest rates on IOLA accounts and additional $45 to $55 million annually will be generated for the IOLA Fund.

Board Of Elections Proposes Rules For Minimum Number Of Voting Machines At Polling Places

The State Board of Elections proposed new regulations today setting the minimum number of voting machines at polling places. The number of machines would be based on the type of voting system used at the polling place and the number of registered voters assigned to that polling place. Under the proposed rules:

1. For Direct Recording Electronic Voting Systems there would be one voting device for every 550 registered voters (excluding voters in inactive status) at the polling place.
2. For Precinct Based Optical Scan Voting Systems there would be one scanning device for every 4,000 registered voters (excluding voters in inactive status) at the polling place.

The regulations also provide for minimum numbers of privacy booths at polling places.

The proposed regulations are a continuing response to the 2000 presidential election and New York's Election Reform and Modernization Act phasing out the traditional lever machines. The intent of the rules is to reduce long lines at polling places, and the proposed regulations state that County Boards of Elections shall deploy sufficient voting equipment, election workers and other resources so that voter waiting time does not exceed 30 minutes.

The Board of Elections will receive public comments on the proposed rules for 45 days. For the full text of the proposed regulations Click Here and scroll to pages 12-14 of the PDF. 

Continuing Education For Licensed Home Inspectors

Licenses for home inspectors in New York are valid for two years, and are subject to renewal only after the completion of approved continuing education courses (Real Property Law § 444-f[1]). The Department of State today outlined the course requirements for licensed home inspectors seeking to renew their licenses. Under the new regulations, home inspectors seeking to renew their licenses will essentially have to take 24 hours of approved continuing education credits over the two year period to renewal. For complete details about the course requirements Click Here and scroll to page 45 of the PDF.