David Goldfarb on Effecting Legislative Change in New York

Popular culture often presents lawyers negatively. We see caricatures of lawyers like Saul Goodman, and we tend to think that lawyers don't have a soul and are bad.^[1] We chuckle when we hear, "The first thing we do, let's kill all the lawyers!." The narrative that is buried is of excellent lawyers who volunteer their time to improve our society.

This blog post shares one example of how a few New York lawyers – including David Goldfarb, Ronald Weiss, and Fern J. Finkel – intervened by convincing New York's Governor Kathy Hochul to veto^[2] a proposed law^[3] that would have imposed a new requirement for principals of a power of attorney who are trustees or beneficiaries to put co-trustees and co-beneficiaries on notice that they signed a power of attorney. The legislation was well-intentioned but would have been unworkable and would have created confusion.^[4] The veto is especially impressive because the bill was unanimously passed by New York's legislature.^[5]

When I read Gov. Hochul's memo that explains her veto (Veto Memo 111), I noticed that it echoed a memo that I and other New York lawyers worked on. I wanted to find out how the memo made its way to Gov. Hochul. So, I reached out to David Goldfarb, the New York lawyer who spearheaded the opposition to the bill. Initially, I thought I would simply update my prior blog post by adding a few details. But Mr. Goldfarb's answer was impressive and led to an interview (shared below), which shows the extensive effort that is sometimes needed to prevent a proposed law from being enacted.

New Yorkers are better off because of the volunteer work of a few excellent lawyers. Good work like this is being done by lawyers countless times across the United States, but we don't learn about it because it happens off stage and it isn't funny or entertaining.

Interview

Sarji: Based on Gov. Hochul's Veto Memo 111, I know that she read the memo we worked on (or an improved version of it). I would like to update my blog post by giving a better explanation of how you got the memo we worked on in front of the governor. I know you presented the memo to the New York State Bar Association's Elder Law Section Legislation Committee, which approved it. What happened after that?

Goldfarb: As you know the Elder Law Section voted to ask for the veto of the legislation (see the Sept. 13, 2022 letter to Governor). NYSBA has lobbyists from Greenberg Traurig that helped to get this to the Governor. Attorney Ron Weiss, who is a former Chair of the New York State Bar Association Trusts & Estates Law Section, got the memo to the Surrogates Association who also called for the veto (see their letter of Oct. 20, 2022). We were also joined by New York NAELA (see letter).

The Governor’s office asked to meet regarding the legislation and the lobbyist, the co-chairs of the ELSN Legislation Committee, and I had a Zoom meeting on October 21, 2022, with the person who was assigned to review the legislation. At her request, I also supplied her with some information regarding the authority of an agent to act for a trustee under current New York law. So, the Governor’s office was fully familiar with our position by the time the legislation was delivered to the Governor.

[Note from Goldfarb: NYSBA has its own in-house legislation staff. But it also hires the lobbyists at Greenberg Traurig.]

Sarji: Was the process of opposing this bill typical or does each intervention respecting proposed legislation take a unique path?

Goldfarb: This bill was somewhat unusual since we didn’t know where it came from or what groups had proposed it. It was not something we were following and unexpectedly passed the legislature.

[Note from Sarji: On this point, the Honorable Stacy L. Pettit – Albany County Surrogate and President of The Surrogates Association – wrote, "[I]t is very troubling that a bill of this magnitude was legislatively approved without input from our Association, which historically, has always been done with proposals in this area of the law."]

Sarji: How did you come to take a leading role in issues surrounding New York's power of attorney? I know that you were involved in drafting the latest revisions to the statutory short form power of attorney. What led to that?

Goldfarb: I was a member of the NYSBA Elder Law Section Legislation Committee at the time the 2009 and 2010 changes to the POA law passed which created the Gifts Rider. We opposed the changes then. After the changes passed, we were waiting to see what problems would arise. Five years later as chair of the Elder Law & Special Needs Section, I drafted a revised POA law eliminating the Gifts Rider, simplifying the form, and including damages for refusing to accept a POA. The Trusts & Estates Law Section at the same time was proposing some technical amendments to the law. The NYSBA President formed a POA Taskforce to consider both proposals. It had representation from Elder Law, Trusts & Estates as well as Business Law and Health Law. I was on the task force and the task force drafted a proposed new POA law which NYSBA adopted. It took five years of lobbying (including negotiations with the New York Bankers Association) to get it passed in both houses of the legislature and signed into law by the Governor.

Sarji: You’ve been volunteering at NYSBA for many years. There are no pro bono awards, so what motivates you to get involved? How do you define success, and how would you reply to someone who argues that success is judged on the level of remuneration?

Goldfarb: I have worked on legislation in the area or Elder Law and Trusts and Estates for 30 years. Through the New York State Bar we have had some significant victories. All the changes we have supported have benefited our clients and I believe improved our practice and the way we serve our clients. I see that as reward in and of itself. In all the areas where I have worked on legislation, I have gained a certain degree of expertise which I have been able to share with colleagues by giving CLE’s and answering questions. Many of the attorneys I have helped end up referring matters to me, so it does result in some added remuneration. I have never believed that success is measured solely in remuneration.

Sarji: What advice do you have to other lawyers who want to get more involved (or help influence New York law) but might not know how to get involved or get started?

Goldfarb: Members of a NYSBA section can join the section’s legislation committee. Some sections are more involved in proposing legislation than others.

Attachments

Below are the documents that Mr. Goldfarb mentions.

Sept. 13, 2022 NYSBA Elder Law & Special Needs Section Letter to Governor

Oct. 20, 2022 Surrogates Association Letter to Governor

NAELA Letter to Governor