Courts and Law

Chuck Otey’s Pro Bono Barrister for July 29

July 29, 2013 By Charles F. Otey, Esq Brooklyn Daily Eagle
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Bob Howe Guides Popular Summer Stroll

If city-aided Summer Strolls become a hit throughout Brooklyn neighborhoods, a lot of the credit for their expansion would be the successful “Stroll” held last year and again this July and August by the Merchants of Third Avenue — a business-civic group in Bay Ridge led by attorney Bob Howe.

“Thousands strolled a traffic-less Third Avenue on two July Friday nights,” President Howe told Pro Bono. “We expect many more when we hold our next events on August 16 and 23.” Even the name ‘Summer Stroll’ has been copied to use for their street-closing endeavors by appreciative imitators in Park Slope. 
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Lawyers’ Dilemma: Is Handshake Still Proof of a Deal?

With long-frozen property deals on the upswing, many lawyers are now facing a  new challenge: How to handle the shifting goal-post dilemma in real estate transactions.

Just about every attorney in a general or local practice has run into this problem. You represent the buyer in a home purchase and after appropriate negotiation, the buyer and seller come to a meeting of the minds on the price. Everyone’s happy.

Let’s say your client has a solid agreement to buy a two-bedroom duplex at the top of a condominium in Williamsburg. Initially listed at $800,000, your client has placed his “best and final” offer for $912,000. The seller congratulates your client and tells him the unit is his. A contract is drawn up.

But the goalposts are suddenly moved by the seller, who demands your client raise his offer to $995,000. Your client is “absolutely outraged.” He quits the field and exclaims, “When you give your word that a deal is done you’re supposed to fulfill your agreement!”

By now, attorneys and brokers reading the above scenario are possibly  well aware that it is ‘lifted’ in its virtual entirety from a story by C.J. Hughes in the Sunday New York Times headlined, “The ‘Shift the Goalpost’ Sale.”

In recent memory, such behavior on the part of sellers was generally frowned upon. It wasn’t illegal. Yet, when faced with a manipulative seller, attorneys and brokers were often red-faced but had to acknowledge the sellers’ “right” to shift the proverbial goalposts.

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Local Attorneys, Brokers Risk Loss of Trust

Attorneys are ethically discouraged from offering business advice, i.e. telling their client, “The deal is a guaranteed profitable bonanza– do it!” It’s a fine but serious distinction between legal consulting  and business counseling. With real estate prices soaring — after a multi-year bust — this ethical line can become blurred.

I am omitting the actual names of brokers and attorneys involved in the Williamsburg transaction because they may have to deal with each other again in the very near future.  If there is lingering bad feeling, their brokerage or law practice may suffer.

Every experienced real estate attorney is used to being “nickled and dimed” by a remorseful or greedy seller who tries to shift every available cost or tax to the buyer at the last minute. But attorneys and brokers who regularly haggle over these middling costs seldom come to blows with their colleague/opponents and the transaction closes at the original, agreed-upon purchase price.

Yet the situation can be quite different in many neighborhoods outside of Manhattan and Williamsburg, where local attorneys and brokers have long-standing even trusting relationships.

How do local lawyers deal with the moveable goalpost dilemma? “First we always advise our (buying) clients that the sale isn’t final until the closing,” a colleague said while discussing the Times story in the Lawyers Room at 360 Adams St.

What about representing a seller? “Local lawyers and those who regularly practice in the real estate bar know that their word must be kept when dealing with lawyers ‘on the other side’, as well as brokers,” he said. “We always discuss how unpredictable the market is these days. Whether dealing with a lawyer we may never meet again or a long-standing Brooklyn colleague, we keep in mind our obligation to the client. Even dealing with another lawyer who is a personal friend, we do walk a fine line.”
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Brooklyn Law Grads OK With Two Year Program?

After a long, stories existence as a traditional education institution, Brooklyn law School is on its way to granting a two-year J.D.

This was big news, even controversial, last year when word first leaked out that the school’s trustees were considering the novel departure from the hallowed three-year degree. But when the official decision was announced in May, the only public outcry seemed to come from various anonymous malcontents on the web.

Some Brooklyn Law full-term graduates have voiced their disapproval at the Trustees’ action.

“What’s shocking,” one fellow alum said the other day  “is that nobody seems to care except those of us who spent three years [at Brooklyn Law] getting our law degrees. We worked every bit as hard as the people who will get out of Brooklyn Law with accelerated degrees.”

After news of the possibility went public last year, most BLS alums we talked with were against the seemingly radical idea. As an already bleak job picture darkened, it became clearer that some changes had to be made.

Engineered by Dean Nick Allard, the innovative approach was apparently necessitated by the lack of law jobs as of late, largely due to the ease with which legal documents can now be produced as well as the consequent  outsourcing  of quasi-legal work by U.S.  law firms. Even a small Court Street office with a handful of lawyers has reportedly been using the Internet so effectively it was able to dismiss a few attorneys and a similar number of legal secretaries.

It’s sort of understood that a talented paralegal, with  minor supervision, can prepare all the necessary court documents in matrimonial and personal injury actions in a fraction of the time the same work required just 15 years ago.  “With e-filing” one internet-savvy barrister told us,” we’ve cut our [cost] overhead dramatically.”

If it’s any consolation to unhappy BLS alums, the annual cost of the accelerated J.D. will be the same as the usual three-year figure: $49 967, and, one presumes, substantial extra costs for the summer term.  A 1967 Brooklyn Law School alumnus recalls that current tuition is a far cry from where it was when the legendary Dean Jerome Prince was in charge. At that time, the cost was $35 a credit!


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