EDUCATION: J.D., University of Chicago Law School (1968) A.B., Columbia College (1965)
PRIVATE PRACTICE: July 1, 1999-present: Of Counsel, Sonnenfeld & Richman 360 Lexington Avenue, New York, NY 10017-6502 Tel. (212) 687-1425 Fax (212) 687-1406 E-mail: Joelberger1955@yahoo.com July 1, 1996-July 1, 1999: Of Counsel, Leventhal & Slade, 777 Third Avenue, New York, New York 10017.
Nature of Practice: General Litigation; Municipal Law; Civil Rights; Police Misconduct
Major cases since entering private practice in 1996 have included (i) a legal malpractice action against nationally prominent civil rights lawyers for missing a filing deadline in the New York State Court of Claims while representing a former inmate who had been declared innocent in state post- conviction proceedings (settled for $900,000 after arguing and winning related issues in the New York Court of Appeals, Long v. State of New York, 7 NY3d 269, 819 NYS2d 679 (2006)) (the City paid Mr. Long an additional $50,000 in a related case); (ii) a civil rights action on behalf of a former New York State inmate convicted on the basis of police perjury (settled for $650,000); (iii) a wrongful death action alleging that a woman inmate on Rikers Island had died due to inadequate medical care and inattention by correction officers (settled for $400,000); (iv) a sexual harassment case on behalf of three female New York City police officers, settled for $650,000; (v) a lawsuit on behalf of a major NYC hospital against the New York City Health and Hospitals Corporation, alleging that a prison health care contract had been awarded to an unqualified hospital on the basis of an illegal bidding process, thereby endangering the lives of the City’s prison inmates (settled for $500,000; the lawsuit also exposed the grossly deficient medical care being provided by the hospital that had won the contract, and influenced that hospital to withdraw from consideration for its renewal); (vi) two actions by families whose homes were invaded by police SWAT teams in illegal searches, each settled for $200,000; (vii) an action by an elderly woman confined to a wheelchair, falsely arrested for assaulting her landlord, settled for $180,000; (viii) an action by a diabetic woman arrested for smoking a marijuana cigarette who was denied medical attention by the police when her sugar count reached life-threatening levels, settled for $125,000; and (viii) an action by a diabetic woman arrested for smoking a marijuana cigarette who was denied medical attention by the police when her sugar count reached life-threatening levels, settled for $125,000; and (ix) an action for damages on behalf of 21 former inmates wrongfully imprisoned by New York State in violation of a federal appeals court decision, Bentley v. Dennison, 852 F.Supp.2d 379 (SDNY 2012) (denying State’s motion to dismiss).
General litigation matters in private practice have included a civil RICO action by a large publishing corporation challenging the fraudulent sale of internet rights by an unauthorized executive, negotiation of a termination and severance agreement for the Vice President and Medical Director of a major hospital, an appeal to compel arbitration of a dispute over computer software royalties, litigation over the profits of a defunct family partnership, defense of a state’s suspension of trainers of thoroughbred racehorses, defense of a real estate firm in a proceeding before the Equal Employment Opportunity Commission, defense of community college-related enterprises in two personal injury actions and two employment discrimination actions (see Baskett v. Hostos Children’s Center, Inc., 03 CV 7330 (SCR)(MDF) (SDNY), Magistrate’s Report of 5/3/05 recommending granting of summary judgment, District Court’s Opinion of 9/9/05 adopting Magistrate’s Report), and representation of a physician in investigations by the State Office of Professional Medical Conduct and the Manhattan District Attorney's Office. I also represented Ronald S. Lauder and New Yorkers for Term Limits in proceedings before the New York City Council in 2001, resulting in the defeat of a proposal to repeal term limits for City Council Members completely.
Additionally, since entering private practice I have won more than $9 million from the City of New York, mostly in cases alleging unjust conviction, false arrest, malicious prosecution, excessive force, sexual harassment and other misconduct by police and correction officers. I also obtained one of the largest sanctions awards ever assessed against the City, James v. City of New York, 1998 WL 677583 (JSM) (SDNY 1998), in which the Court assessed sanctions and attorney’s fees for failure to comply with discovery obligations. I defeated a subsequent effort by the City to disqualify me from representing clients in police cases. Robbins v. City of New York, 98 Civ. 5331 (JSR) (SDNY January 19, 1999). Another retaliatory effort by the Giuliani Administration, seeking to remove me from an adjunct teaching position at the New York University School of Law, was also unsuccessful. See New York Times, January 22, 2008, p. A16.
Senior Litigator, Executive Staff, New York City Law Department (1988 - June 30, 1996) (served under three Mayors and four Corporation Counsels)
Nature of Practice:
a) Police Misconduct: Determined when the Corporation Counsel would decline to represent police officers who had acted outside the scope of their employment or in violation of departmental rules and regulations; reviewed recommendations in these matters by Assistant Corporation Counsels and interviewed officers before making final determinations. Supervised and coordinated the City’s defense of lawsuits by police unions challenging non-representation of individual officers, e.g., Schwartz v. The City of New York, 57 F.3d 236 (2d Cir. 1995); Bolusi v. The City of New York, Index No. 123090/95 (Sup. Ct., N.Y. Co., Jan. 28, 1997), aff'd, 249 A.D.2d 134, 671 N.Y.S.2d 478 (1st Dept. 1998). Supervised Assistant Corporation Counsels in settlement of cases in which the City refused to represent individual police officers.
b) Other Litigation: Litigated and supervised litigation teams in high-profile cases by or against the City of New York, its agencies and officials. Examples include the City's challenge to Staten Island's effort to secede, City of New York v. State of New York, 76 N.Y.2d 479 (1990); U.S. Justice Department proceedings and litigation related to the 1989 Charter revision (e.g., Ravitch v. City of New York, 1992 WL 196735 (SDNY Aug. 3, 1992)), the 1991 City Council districting (e.g.,Brooklyn Heights Association v. Macchiarola, 82 N.Y.2d 101 (1993)), community school board elections and redistricting, Asian language ballots (e.g., Chin v. Board of Elections, 194 A.D.2d 480, 599 N.Y.S.2d 569 (1st Dept. 1993)), and judicial elections; litigation concerning the Human Resources Administration's operation of the foster care system (e.g., Wilder v. Bernstein, 49 F.3d 69 (2d Cir. 1995)), the Board of Education's procedures for evaluating and educating handicapped children (Jose P. v. Sobel, EDNY), and the Police Department's arrest and undercover surveillance practices (Handschu v. Special Services Division, SDNY); an environmental lawsuit by the State of New Jersey and others seeking major changes in the City's operation of the Fresh Kills Landfill (Township of Woodbridge v. City of New York, DNJ (Nicholas deB. Katzenbach, Special Master)); settlement of a sex discrimination case against the City's largest pension system, involving distribution of $18 million to approximately 30,000 retirees (Women in City Government United v. City of New York, SDNY); and a highly-publicized action by a rape complainant against the Brooklyn District Attorney.
c) Administrative: Served on the Legal Personnel Committee that made all hiring recommendations, subject only to final review by the Corporation Counsel. As a member of the Executive Staff, the Corporation Counsel’s “cabinet,” participated in numerous reviews of budgetary and other administrative problems affecting the Law Department and its relations with City Hall, the Office of Management and Budget, and other agencies of City government.
NAACP Legal Defense and Educational Fund, Inc. (1977-88)
Nature of Practice:
a) Death Penalty Cases: Represented death-sentenced individuals on appeals, state and federal post-conviction proceedings, and emergency stay applications. Argued and won one capital case before the Supreme Court of the United States, Estelle v. Smith, 451 U.S. 454 (1981); argued nine such cases in the United States Courts of Appeals for the Fifth and Eleventh Circuits, winning eight of them including two en banc appeals, Alderman v. Austin, 695 F.2d 124 (5th Cir. 1983) and Burns v. Estelle, 626 F.2d 396 (5th Cir. 1980). Participated as co-counsel or counsel for amicus curiae in more than 25 other capital appeals and stay applications in the Supreme Court and United States Courts of Appeals, and in numerous federal habeas corpus hearings in the United States District Courts.
b) Civil Cases: Represented plaintiffs in several cases concerning the desegregation of public educational institutions, enforcement of the Voting Rights Act, and the rights of institutionalized individuals. Successfully defended a remedial desegregation program in Tennessee's public higher education system against a “reverse discrimination” challenge by the Reagan Administration. Geier v. Alexander, 801 F.2d 799 (6th Cir. 1986), aff'g 593 F.Supp. 1263 (M.D. Tenn. 1984). Litigated class actions concerning prison and jail conditions in several states, e.g., Ruiz v. Estelle, 679 F.2d 1115 (5th Cir. 1982) (Texas state prison system); McDonald v. Armontrout, 860 F.2d 1456 (8th Cir. 1988) (Missouri death row conditions); Vazquez v. Gray, 523 F.Supp. 1359 (SDNY 1981) (court-appointed) (Westchester County Jail). O’Bryan v. County of Saginaw, Michigan, 529 F.Supp. 206 (E.D. Mich. 1981) (contact visiting in county jail), aff'd, 741 F.2d 283 (6th Cir. 1984);
Director, The Legal Aid Society Prisoners' Rights Project (1971-77)
Nature of Practice:
Lead counsel for plaintiffs in a series of civil rights class actions, in the Southern and Eastern Districts of New York, that developed the law governing the constitutionality of New York City's jail conditions. Tried the class action that led to the closing of the Tombs by Hon. Morris E. Lasker in 1974, and argued two appeals in which the Second Circuit affirmed Judge Lasker's orders. Rhem v. Malcolm, 371 F.Supp. 594 & 377 F.Supp. 995 (SDNY 1974), aff'd, 507 F.2d 333 (2d Cir. 1974); Rhem v. Malcolm, 527 F.2d 1041 (2d Cir. 1975). See also Rhem v. Malcolm, 432 F.Supp. 769 (SDNY 1977) (rejecting, after evidentiary hearing, City's plan for re-opening of the Tombs). Lead counsel at the 1976-77 trial of Benjamin v. Malcolm, (SDNY, 75 Civ. 3073), the class action before Judge Lasker that led to a comprehensive citywide consent decree concerning jail conditions. Lead counsel in hearings before Hon. Robert J. Ward concerning the constitutionality of conditions at Matteawan State Hospital for the Criminally Insane, Negron v. Preiser, 382 F.Supp 535 (SDNY 1974). Litigated or supervised litigation of more than twenty other civil rights class actions in the District Courts and the Second Circuit concerning the constitutionality of conditions and practices, and damages for brutality by prison guards, in New York State and New York City correctional facilities, as well as several cases in the state courts concerning the rights of parolees and ex- offenders. Responsible for hiring, training, and supervision of professional and support staff, and for day-to-day operation of the office.
Associate Appellate Counsel, The Legal Aid Society Criminal Appeals Bureau (1968-71)
Nature of Practice:
Appeals from felony convictions; state and federal post-conviction hearings and appeals. Argued eleven cases in the N.Y. State Court of Appeals, two in the Second Circuit, and several in the Appellate Divisions for the First and Second Departments. Won summary reversal by the Supreme Court of the United States of the NYS Court of Appeals’ denial of state post-conviction relief in a Brooklyn homicide case. DeMino v. New York, 404 U.S. 1035 (1972), rev'g 29 N.Y.2d 602 (1971).
January 1988-December 1997
Adjunct Professor, New York University School of Law, teaching a seminar/clinic each semester in litigation skills.
Wrong Door: SWAT Raids Are Out Of Control, Wall Street Journal, Opinion Page, Saturday- Sunday, September 2-3, 2006, p. A9 (co-authored with Radley Balko of the Cato Institute).
The Police Misconduct We Never See, New York Times, Op Ed Page, Tuesday, February 9, 1999, p. A23.
See-No-Evil Officers Should Pay, New York Times, Op-Ed Page, Sunday, August 24, 1997, Section 4 (News of the Week in Review), p. 13.
Preclearance and the Voting Rights Act, New York Law Journal, December 15, 1994, p. 1, col. 1.
Conflicts of Interest in Civil Rights Actions Against Police Officers -- Post Rodney King: New York City Corporation Counsel's Viewpoint, 9 Journal of the Suffolk Academy of Law 69 (1994) (remarks at symposium sponsored by Touro College, the Fuchsberg Law Center).
ADMITTED TO PRACTICE IN:
New York State (Appellate Division, First Department, December 23, 1968)
Supreme Court of the United States; United States Courts of Appeals for the Second, Fifth, Sixth, Eighth, Eleventh and District of Columbia Circuits; United States District Courts for the Southern, Eastern, Northern and Western Districts of New York
MEMBERSHIPS & OFFICES IN BAR ASSOCIATIONS, SECTIONS & COMMITTEES:
Court-Appointed: Member, Eastern District Advisory Group, appointed by the Chief Judge pursuant to the Civil Justice Reform Act of 1990 (28 U.S.C. § 478). Member, Joint Southern District-Eastern District Committee on Local Rules that produced comprehensive Local Rules revisions adopted by the Boards of Judges of both Courts (eff. April 15, 1997) and the Model Individual Practice Rules for Judges of both Courts; Member, Eastern District Committee on Civil Litigation (1989-present).
N.Y. State Bar Association: Committee on Professional Ethics (1994-1998).
Association of the Bar of the City of New York: Member of the Civil Rights Panel of the Association’s Legal Referral Service; Member, Association Committee that administers the Legal Referral Service (2011-present). Chair, Committee on Government Ethics (1995-98); reports include "Contributions to Campaigns of Candidates for the Surrogates Courts, and Appointments by Surrogates of Guardians Ad Litem," The Record, Vol. 54, No. 1 (Jan./Feb. 1999), "Campaign Contributions by Lawyers Seeking Government Finance Work," The Record, Vol. 52, No. 2 (March 1997), "The Proposed Term Limits Amendment," The Record, Vol. 51, No. 7 (Nov. 1996) and "Repeal Term Limits in New York City?," The Record, Vol. 51, No. 3 (April 1996). Task Force on the State Constitutional Convention (Michael A. Cardozo, Chair) (1994-97); chair, subcommittee on Delegate Selection, Election Law & Ethics Issues (1995), report printed in The Record, Vol. 50, No. 7 (November 1995). Committee on Professional Responsibility (1994-96). Project on the Homeless (1992-98). Committee on Professional and Judicial Ethics (1990-1994); chair, subcommittee on Campaign Contributions (1993-94). Committee on Civil Rights, (1987-90); chair, subcommittee on New York City Charter Revision (1987-88). Committee on Legal Assistance (1985-87); chair, subcommittee on Representation of Pro Se Litigants in the Federal District Courts Through Pro Bono Panels (1986-87), report printed in The Record, Vol. 43, No. 8 (December 1988). Committee on Criminal Advocacy, 1982-85; chair, subcommittee on Ineffective Assistance of Counsel Litigation (1984-85). Special Committee on Penology (1976-78).
OTHER PROFESSIONAL ACTIVITIES:
Citizens Union of the City of New York: Member, Board of Directors (June 1997-June 2003; June 2004-March 2010); Co-Chair, Municipal Affairs Committee, 2005-2008; member of Local Candidates Committee subcommittees rating candidates for District Attorney in contested races in Bronx County (1988), Kings County (1989) and Richmond County (1995), and rating candidates in several contested races for Surrogate’s Court, Supreme Court and Civil Court.
The Fortune Society: 1986 recipient of the Society's Karl Menninger Award for leadership in prison reform.
Guest Speaker: Pace University School of Law (faculty, Introduction to Section 1983 Litigation); Touro College (Fuchsberg Law Center) Institute of Local and Suburban Law (faculty, Conflicts of Interest in Civil Rights Actions against Police Officers); Practising Law Institute (faculty, Prisoners’ Rights Litigation); Lorman Educational Services (faculty, Police Liability); The New School for Social Research; Association of the Bar of the City of New York (panels on (i) Redistricting and the Voting Rights Act, (ii) the 1996 New York City term limits ballot proposal and (iii) "pay-for-play" practices of municipal bond lawyers); NBC-TV (The Today Show), MS-NBC, WNBC-TV (Gabe Pressman and other news programs), Fox 5 (Good Day New York), Court-TV, National Public Radio, WNYC-FM, WBLS/WLIB (David Dinkins), WBAI and WEVD (programs on police misconduct); National Legal Aid and Defender Association; National College for Criminal Defense (faculty of programs in Colorado, Florida, New Mexico and Oregon); State Bar of Texas Criminal Law Institute; Texas Criminal Defense Lawyers Association; Public Defender conferences (Kentucky, Ohio, Oklahoma and Massachusetts); and law school seminars at Columbia, N.Y.U., New York Law School, Brooklyn Law School, Northeastern, Stanford, Harvard, Yale and the University of Texas.