Continuing Legal Education from the Clients' Point of View
Posted: January 29th, 2008
By: Zach Heller
Category: Career Corner

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Does Hourly Billing Make Sense?
Posted: January 28th, 2008
By: Zach Heller
Category: Career Corner, Law Firms, Opinion Corner

I recently read an opinion piece in the New York Law Journal about the practice of hourly billing.  I have always contended that there are major flaws in industries that bill clients by the hour as opposed to flat fee billing.  And this article, written by Steven G. Nachimson, discusses some of the major issues that need to be looked at when considering a change from this billing method.

First off, the major flaw of this system is that “it promotes inefficiency”.  In a system where the longer something takes, the more you get paid, there is no motivation to “finish” anything.  In essence, fees are not truly based on results or skill of the person.  Sure, someone who has more experience and is more successful will get more clients and therefore get the pay that they deserve, but an inefficient person can make more money by taking more time to complete certain tasks.

Law is just one example of where this “problem” exists.  A therapist, for example, has no motivation to get a client to stop coming back for more therapy.  In my opinion, a therapist should charge a flat fee, payable the day that therapy is no longer needed.  I think we would see a lot less people in therapy for long periods of time that way.

And in the law, it is the same problem.  The issue comes down to the motivation of the professional to get a job done.  A flat fee system may not work either but I think the process needs a second look.  In the article, Mr. Nachimson suggested that fixed fees make it easier for clients to see the value in legal representation, which is extremely important.  This is an issue that should be considered by many in the legal community.

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Friday Five: ACLEA Conference this Weekend
Posted: January 25th, 2008
By: Zach Heller
Category: Business Development Skills, Friday Five, Lawline.com, Opinion Corner

Big news for Lawline.com today.  This weekend, The Green Valley Ranch Resort in Las Vegas will be the site of the annual ACLEA (Association of Continuing Legal Education Organizations Conference.  As an online CLE provider, of course we will be in attendance.  But even better than that, our President, David Schnurman will be giving a presentation entitled, How to Write a Business Plan for your CLE Organization.  So, in honor of that, this week the Friday Five is all about why you need to go see this presentation.

TOP FIVE REASONS TO SEE DAVID SCHNURMAN SPEAK AT THE ACLEA CONFERENCE

1. It doesn’t matter what you do in life, the fundamentals of planning and setting goals will hold true.  This presentation is as much about the basics of a business plan, as it is about the important of such things as laying out your goals and projections, and following a vision.  It can help any professional to think about their approach to business, investments, and life in general.

2. David will be presenting with a representative from New York County Lawyers Association, our new partner.  This is a great chance to discuss the Continuing Legal Education world from two different points of view, online and offline.  It will be interesting to compare and contrast the missions of the organizations and the basic strategies they use in day to day business.

3. Not only did David write the business plan for Lawline.com, he founded another company called TrueNYC.  You will be getting advice from someone with experience writing business plans that have been successfully put into action.  He will walk you through the do’s and don’ts in addition to general strategy.  It will be an hour jam packed with information.

4. I wrote and prepared the entire presentation so you know it will be good.  I stayed up many a cold January night to get this presentation set up and finished before the conference and I think you need to be there to give me the respect that I deserve.

5. It’s Vegas Baby!

If you can’t make it out to Vegas this weekend, that is a real shame.  You will be missing a once in a lifetime event.   Maybe, if you’re lucky, we’ll tape it and let you watch it on the website.  Happy Friday!

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Law Firm Work Schedule Flexibility?
Posted: January 24th, 2008
By: Zach Heller
Category: Career Corner, Law Firms, The News Beat

An interesting article in the New York Times today caught my eye.  The article was about the business world changing and adapting to a better work life balance.  It mentioned many industries that have improved employee working conditions by opening up time and mandatory hour restrictions.  And one industry that really has not taken part in this universal work schedule flexibility movement until now, is the law.

An excerpt from the article reprinted below:

“Over the last few years and, most strikingly, the last few months, law firms have been forced to rethink longstanding ways of doing business, if they are to remain fully competitive…lawyers are overworked, depressed and leaving… Less obvious, but potentially more dramatic, are the signs that their firms are finally becoming serious about slowing the stampede for the door. So far the change — which includes taking fresh looks at the billable hour, schedules and partnership tracks — is mostly at the smaller firms. But even some of the larger, more hidebound employers are taking notice.”

This trend continues to grow among larger law firms and many lawyers are beginning to take notice.  It is an interesting issue that will certainly be the topic of some conversation in the near future.  To read the full article, click here.

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Thursday Attorney Malpractice Update 1/24/08
Posted: January 24th, 2008
By: Andrew Bluestone, Esq.
Category: Attorney Malpractice, The News Beat

MITIGATION IN LEGAL MALPRACTICE

A blackletter rule of law is that plaintiffs are required to mitigate their damages to the extent reasonably possible.  This two-decision set of cases illustrates permutations in legal malpractice. First, Minchew, Santner & Brenner, LLP v Somoza (2008 NY Slip Op 50112(U)). Ultimately, when an attorney is retained to prosecute a legal malpractice case he is not required to try to fix the underlying action which led to the legal malpractice case.  This is different from a situation in which the new attorney is a successor to the predecessor, and must of course try to fix things.

Here, plaintiff hired attorney A to bring an action in the NY Court of Claims.  Attorney A is alleged to have failed timely to file the notice of claim.  Plaintiff hired attorney B, the Minchew firm, to sue attorney A.  A most important fact is that while the notice of claim was not timely filed, the statute of limitations has not yet passed, and plaintiff may still file a motion seeking leave to file a late notice of claim.  No one has moved for leave.

Attorney A, who is now a legal malpractice defendant, asks the Minchew firm to mitigate damages by filing a motion seeking leave to file a late notice of claim.  The do not, and will not.  So Attorney A third-parties the Minchew firm into the case.  This sets the stage for mayhem.

The Minchew firm then sues the insurance defense attorneys who brought the third-party action.  Justice McMahon writes this decision: “As a result, all causes of action alleged by the plaintiff in their complaint are dismissed. All other requested relief is denied or academic. Finally, this Court will again strongly urge the attorneys involved in these matters to cooperate and set aside these vindictive and unnecessary actions in an effort to resolve  [**9]  this case.”

The companion case is Cacho v Law Offs. of Louis Venezia (2008 NY Slip Op 50111(U)).  This part of the case deals with the Minchew law firms motion to dismiss the third-party action.  Here, the judge deals with the law firm’s obligation to mitigate damages:
“With respect to the motion at hand, generally, where a law firm is retained for the limited and express purpose of representing a client in a legal malpractice action, they do not have a duty to prosecute the underlying claim, if one still lies (see Northrop v. Thorsen, ___ AD3d ___, [2d Dept., Dec. 18, 2007][finding that an attorney retained "in a separate matter, before a separate tribunal, and for a different purpose" does not require him to mitigate damages in the underlying claims); Johnson v. Berger, 193 AD2d 784, 786 [2d Dept., 1993][holding that a law firm's failure to preserve an estate's assets, when retained for the limited purpose of prosecuting a legal malpractice action "did not contribute to or aggravate the plaintiffs' damages arising from the former attorneys' alleged legal malpractice]"
Here, third-party defendant's have established entitlement to judgment in accordance with CPLR § 3211(a)(1) and (a)(7). The retainer agreement is clear and specific, detailing that the representation by the third-party defendants is for "damages arising from personal injuries sustained by Eugene Cacho as a result of legal malpractice." Further, the cases cited by the defendant/third-party plaintiff's are distinguishable from the instant matter in that here, the third-party defendant Minchew was not hired as successor counsel to prosecute the personal injury claim, but rather on a different matter, in front of a different Judge and for a different purpose (Northrop v. Thorsen, ___ AD3d ___ [2d Dept., Dec. 18, 2007]). As a result, defendant Minchew is under no obligation to file a late notice of claim and therefore, dismissal of the third-party complaint is warranted (see CPLR § 3211 [a][1],[a][7]; Northrop v. Thorsen,”

NEWS IN LEGAL MALPRACTICE THIS WEEK

Adrift and pro-se in Federal District Court is a lonely place to be.  Any attorney who has practiced in State and Federal Courts knows the differences between them.  This week brings a case in which both sides of a legal malpractice-fiduciary breach case are pro-se. DANIEL KIRK and LINDA KIRK, v. JOSEPH M. HEPPT, ESQ., 05 Civ. 9977 (RWS),UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, 2008 U.S. Dist. LEXIS 3805 is an illustration of how things can go wrong there.

Plaintiff’s causes of action are dissected, and for the most part are found wanting.  Defendant’s counterclaims are, for the most part, gutted.  No one walks away from this case intact.
 
“The Kirks initiated this action against Heppt, Daniel's former lawyer, on November 28, 2005. The complaint alleged breach of contract, fraudulent misrepresentation, breach of fiduciary duties, mail fraud, and violation of N.Y. General Business Law § 349 arising  [*2] out of the representation by Heppt of Daniel in an action brought on behalf of Daniel against Daniel's former employer (Compl. P 1). The Honorable Sidney H. Stein dismissed Daniel's action on August 31, 2004. Kirk v. Schindler Elevator Corp., No. 03 Civ. 8688 (SHS), 2004 WL 1933584 (S.D.N.Y. Aug. 31, 2004). The Kirks' motion to amend their Complaint in the instant action pursuant to Fed. R. Civ. P. 15(a) was denied by this Court on March 20, 2006. Kirk v. Heppt, 423 F. Supp. 2d 147, 151 (2006).

Plaintiff’s fraud claims are dismissed, plaintiff’s NY General Business Law § 349 Cause of Action are Dismissed, The Claim for Breach of Fiduciary Duty is Dismissed in Part, The Treble Damages Claim Under Judiciary Law § 487 Is Dismissed and on defendant’s side, the defamation claims are dismissed.

For more information visit the New York Attorney Malpractice Blog.

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Friday Five: SmartPhone Tools for Lawyers
Posted: January 18th, 2008
By: Zach Heller
Category: Business Development Skills, Friday Five, Lawline.com, Opinion Corner

At Lawline.com, you know that we are always paying attention to the newest and best technologies available.  It is quite obvious that the more technologies available to lawyers, the easier it is to manage the many obligations of the legal profession.  In this edition of the Friday Five, I want to pay special attention to the latest and greatest mobile devices and how they can help make the life of an attorney a little easier.

TOP 5 WAYS TO USE YOUR MOBILE PHONE OR PDA FOR LAWYERS

1. TRACK BILLING TIME.  Many of the latest mobile devices have time trackers and stop watches built in that are perfect to use anytime you are working on a case.  Simply stop and start every time you are in a meeting, on the web, or on the phone with clients.  This way you have an exact time instead of trying to remember your hours later.

2. ACCESS DOCUMENTS FROM ANYWHERE.  With the ability to access the internet and store documents, newer smart phones allow you to carry everything you need everywhere you go.  Instead of lugging around physical files and folders, or a laptop, you can access anything you need in the palm of your hand.

3. DO RESEARCH ON THE GO.  Again, the ability to get on the web from any location can come in handy if you need to do some research on a case out of the office.  This is great for commuters and travelers who spend a lot of time on the move.  You are no longer constricted to your office when it comes to researching case files.

4. MANAGE CLIENTS.  Wireless access to email and messaging services allows you to keep in touch with your most important clients no matter what.  Clients will appreciate this and it will help you retain more clients at one time with the ease and mobility of communication.

5. MANAGE YOURSELF.  With the countless personal organization tools on every Smartphone, it will be easier than ever to manage the many obligations you have.  Some examples of useful tools are calendars, phone books, schedules, alarms, reminders, maps, and GPS.  Use them wisely and you may find that you can juggle all your responsibilities and then some.

In addition, many new phones have multimedia abilities built in, making it possible to listen to Continuing Legal Education on the go.  That makes sense, especially for lawyers with busy schedules (most, if not all) who need to complete CLE requirements on their own time.  With these phones getting better, smaller, and more affordable, it makes sense to take advantage of all the tools that they provide.  It can make anyone’s life much more manageable.

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Thursday Attorney Malpractice Update 1/17/08
Posted: January 17th, 2008
By: Andrew Bluestone, Esq.
Category: Attorney Malpractice, The News Beat

CASES THIS WEEK IN LEGAL MALPRACTICE

CHICAGO TITLE INSURANCE COMPANY, Plaintiff, v BARBARA J. MAZULA, Defendant and Third-Party Plaintiff-Appellant; JAMES E. KEABLE, Third-Party Defendant-Respondent.

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
2008 NY Slip Op 27
January 3, 2008

This is a case in which the question becomes whether an individual or an estate hired the attorney. In order for plaintiff to prevail, the court must determine that the estate hired the attorney, and each of the mistakes took place while the attorney represented the estate, not the individual. 

“Defendant argues that the toll applies because the sale of the property was not an isolated transaction, but an estate matter during which Keable continued [**4] to represent defendant's husband's estate long after the malpractice accrued. We disagree. The first deed attempted to convey what was believed to be the estate's interest in the property whereas the second deed conveyed defendant's personal interest. Regardless of how the first deed was executed, defendant, as a surviving tenant by the entirety, solely conveyed her personal interest (see Matter of Mischler, 30 AD3d 859, 860, 819 N.Y.S.2d 118 [2006]). Hence, as to both deeds, Supreme Court correctly determined that Keable was always acting for defendant in her individual capacity, not in her capacity as the executor of her husband's estate 2. Since Keable performed no further work for [*3] defendant, either personally or in her capacity as executor of the estate after January 2000 in regard to this transaction, the commencement of this third-party action for legal malpractice was not timely.”

Gerald Goldman, et al., Plaintiffs-Appellants, v Akin Gump Strauss Hauer & Feld, LLP, et al., Defendants-Respondents. 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 

2007 NY Slip Op 10492
December 27, 2007

In many legal malpractice cases, we find that the attorneys played several roles. Sometimes, they start as transactional attorneys, and morph into litigation attorneys. 

Here the “documentary evidence [that] effectively precludes plaintiffs from arguing that defendants' representation in the arbitrations was continuous with their representation in the sale. Such documentary evidence consists of the affidavit submitted by plaintiffs in a prior litigation that involved an unsuccessful attempt by a limited partner to disqualify defendants from representing plaintiffs in one of the arbitrations. Therein, one of the plaintiffs stated that while defendants were retained to advise plaintiffs and, if need be, serve as their litigation counsel, in connection with litigation then being threatened by the limited partners, as to the sale itself, defendants were retained only to draw the documents necessary to consummate a deal that had already been negotiated and agreed to. Holding plaintiffs to this position (see D & L Holdings v Goldman Co., 287 AD2d 65, 71-72, 734 N.Y.S.2d 25 [2001], lv denied 97 NY2d 611, 742 N.Y.S.2d 604, 769 N.E.2d 351 [2002]), defendants' [**3] representation in the arbitrations, which involved the merits of the litigation that was being threatened by the limited partners at the time plaintiffs retained [*2] defendants, was distinct from their representation in "papering" the sale, which did not involve negotiating the terms of the sale or advising whether or not to proceed with it.”

WHEN IS AN EXPERT NOT NECESSARY?

There are many formulations set forth describing when an expert is necessary or not, in legal malpractice.  “Expert testimony is normally needed to establish that an attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, unless the ordinary experience of the fact-finder provides sufficient basis for judging the adequacy of the professional service, or the attorney’s conduct falls below any standard of due care.”

This quote, from Northrop v. Thorsen, 2007 Slip Op 10125 [2d Dept, 2007] described a not uncommon mistake.  Attorney represents plaintiff in a personal injury action, and, in effect, settles the case without the consent of the Worker’s Compensation Carrier.  Here, he agreed to binding arbitration, and when advised of the error, failed to rectify the problem.

Here in a case of not leaving well enough alone, the attorney made a motion for summary judgment, and instead, the court granted summary judgment to the plaintiff.

This case is interesting on two other points.  By persevering, plaintiff won the case even after he was precluded from offering expert testimony!

The second interesting point is that the attorney tried to plead comparative fault or “failure to mitigate damages” by arguing that plaintiff himself could have moved for a nunc pro tunc order.  The court responded: “The defendant, however, may not shift to the client the legal responsibility [he] was specifically hired to undertake because of his superior knowledge.”

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Law Firm Layoffs: What's a Lawyer to Do?
Posted: January 16th, 2008
By: Zach Heller
Category: Career Corner, Law Firms, Law School, Opinion Corner, The News Beat

There is no reason to think that finding a job with a major law firm is any harder than it used to be.  That is if you don’t count the fact that large law firms everywhere are laying off people at a faster rate than ever and there are more law school graduates looking for jobs in 2008 than any of the five previous years.  Of course this is a problem.

With the recent credit crisis and financial problems, many larger firms dealing with corporate and finance practices have been experiencing slowdowns.  This means that some lawyers are finding themselves out of a job, and job seekers are coming up short.  Check out this article published by the Wall Street Journal this past weekend.  So what is a lawyer to do when he or she can’t find work in the legal field?

Use your knowledge of the legal world to do something related.  Work on your own or join a company designed to help lawyers and law firms, such as a consulting firm or a marketing agency.  There are many businesses out there designed to sell to, or help out law firms.  You can bring an expertise to the table that these companies may lack, and may pay big bucks to get.

Of course you can always gather a group of lawyers, all struggling with the current job market situation, and open up your own practice.  You may have to work hard and start small, but who knows what type of opportunities could come of it.  All of those large law firms had to start somewhere.

Whatever you do, make sure it is something that you want to be successful at.  And don’t get downon yourself, because the market will turn around.  Your old job may be waiting for you when the firms start hiring again, that is if you still want it.

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Lawline.com Offers New CLE Credit Hours that Never Expire
Posted: January 15th, 2008
By: Zach Heller
Category: CLE Programming, Lawline.com, Press Release, The News Beat

January 15, 2008 - New York, NY -- Lawline.com is now offering packages of CLE credits for attorneys looking to earn their credits online.   Lawline.com, an innovative provider of Continuing Legal Education online, is changing the way their users can purchase courses.  Attorneys can now purchase a package of credit hours that never expire and apply the credit to any course they want.  

Unlike purchasing individual courses that may only be active in certain states for 1-2 years, these credits never expire.  This means that an attorney can buy a package of credits, use some right away and save some until their next reporting period.  In essence, attorneys will be getting a discount on courses they will need in the future.

Lawline.com first announced this new system in a holiday newsletter sent to the company's current users.  On January 1, 2008, the system was made available to everyone who signs up.  The hope is that users will get more enjoyment out of the CLE experience since they can take the courses they want, when they want.  The packages start as low as $275, and range from 12 to 45 credits. To take advantage of this new credit option visit http://www.lawline.com/cle/purchase-cle-credits.php 

Lawline.com has been providing online Continuing Legal Education since 1999, and now serves more than 35 states across the country. Lawline.com continues to look for new ways to assist attorneys nationwide complete their mandatory CLE requirements easily and efficiently.

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30 Second Pitch Method to Legal Business Development
Posted: January 14th, 2008
By: Zach Heller
Category: Business Development Skills, Career Corner, Law Firms, Lawyer Profiles, Marketing Tips, Opinion Corner

Arthur Levin is the Founder of AGL Associates, a consulting firm that specializes in law firm consulting, business development training for lawyers, and helping companies sell products and services to law firms.  Arthur has been involved with the business development side of law firm marketing for years and he has developed several key tips that he offers to every lawyer or law firm that he works with.

Lawline.com spoke to Mr. Levin recently to find out what kind of tips he would be willing to share with us.  The most important thing he said was that a Lawyer needs to really understand what he or she does for the clients.  Representation, as he says, is such a strong word because you are actually speaking and acting for another person.  As a lawyer, you have to be willing to sell your services and your own persona to gain a client’s, or even potential clients, trust.

Below is a clip from the interview in which Arthur speaks about a 30-second pitch that any lawyer should develop to help convey your own personal value to the client.

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Friday Five: January CLE Dealines
Posted: January 11th, 2008
By: Zach Heller
Category: CLE Programming, Friday Five, Lawline.com

As a Continuing Legal Education provider, Lawline.com maintains a constant communication with the many bar associations and CLE boards across the country.  It is important to note when there is a rule change, a reporting cycle update, or a deadline is approaching.  And in January, there are many deadlines for attorneys in a number of different states.  So to help remind attorneys that time is running out, below is a list of the five biggest deadlines to meet this January 31st.

TOP FIVE CLE DEADLINES THIS MONTH

1. Oregon.  Attorneys in the Beaver State have to complete 45 credit hours every three years.  This requirement includes 5 hours of Ethics, 3 hours of Elimination of Bias, and 1 hour of Child Abuse Reporting Obligations.  Oregon allows attorneys to take all 45 credits online, and Lawline.com offers discounted Oregon CLE Bundles for up to 41 credits.

2. California. Staying out on the west coast, California attorneys also have a deadline this month.  California requires 25 credits every two years, of which 4 hours have to be in the area of Legal Ethics, 1 hour in Substance Abuse, and 1 final hour in the area of Elimination of Bias.  Lawline.com offers a number of California CLE Bundles that include 23 credits for less than $400.

3. Georgia. As opposed to the previous two states, Georgia attorneys have a deadline every January.  They require 12 credit hours each year, including 7 general credits, 3 hours of trial skills, 1 hour of ethics, and 1 hour of professionalism.  Lawyers in Georgia are only permitted to take 6 of their credits online.  You can see a list of courses offered for Georgia on Lawline.com here.

4. South Carolina. Just like Georgia, South Carolina requires that attorneys complete CLE on a yearly basis.  They require 14 credits, including 2 hours of Ethics.  In addition, South Carolina also limits the amount of credits that can be earned online to 6.  Lawline.com offers a 6 credit South Carolina CLE Bundle for $175.

5. Wyoming. The final January 31 deadline here is Wyoming.  Attorneys in Wyoming have to complete 15 credits every year, including 1 hour of Ethics.  Lawline.com offers a 5 credit Wyoming CLE Bundle, the maximum amount of online credits permitted by the state, for $125.

In addition to these deadlines, attorneys in Florida, Texas, and New York have CLE deadlines every month depending on their birthdays and date of admission.  To all those with upcoming deadlines, we wish you good luck.  It can be hard to fit in the time to complete your Continuing Legal Education, which is why Lawline.com is trying to make the process as easy as possible.

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Thursday Attorney Malpractice Update 1/10/08
Posted: January 10th, 2008
By: Andrew Bluestone, Esq.
Category: Attorney Malpractice, The News Beat

THIS WEEK’S CASES IN LEGAL MALPRACTICE

1. Gerald Goldman, et al., Plaintiffs-Appellants, v Akin Gump Strauss Hauer & Feld, LLP, et al., Defendants-Respondents.

SUPREME COURT OF NEW YORK, APPELLATE DIVISION,
FIRST DEPARTMENT, 2007 NY Slip Op 10492

Statute of limitations question in a transactional and litigation case in which defendant attorneys were determined to have worked in the litigation end of the case only, and not in the transactional part..  Dismissal was granted on the basis of prior affidavits.

2.  The Barbara King Family Trust, etc., et al., Plaintiffs-Respondents-Appellants, v Voluto Ventures LLC, et al., Defendants, Kurzman Eisenberg Corbin Lever & Goodman LLP, et al., Defendants-Appellants
 
SUPREME COURT OF NEW YORK, APPELLATE DIVISION,
FIRST DEPARTMENT, 2007 NY Slip Op 10072

This is a convoluted real-estate purchase, mortgage foreclosure, improvident securities purchase and investment case.  The defendant attorneys represented both King and Voluto, but their representation of  King  was limited to advising her, correctly, in a real estate purchase bid.  She profited from their advice, and then invested the profit unsuccessfully in Voluto.  Case dismissed against the attorneys.

3. Frances Northrop, respondent, v Eric Ole Thorsen, appellant.
2007-00973

SUPREME COURT OF NEW YORK, APPELLATE DIVISION,
SECOND DEPARTMENT, 2007 NY Slip Op 10124

Here is a prime example of when to quit.  Defendant attorney moves for summary judgment and loses the motion.  Not satisfied, he appeals, and the Second Department searches the record, entering summary judgment for Plaintiff-Respondent instead.

Attorney represented Plaintiff in a personal injury third party action in which she had obtained Workers Compensation awards.  He entered binding arbitration without obtaining the WC carrier’s consent, and thus doomed her future WC benefits, forever.  When given a chance to fix the problem, he failed to do so. 

4. Richard Gladstone, et al., Plaintiffs-Appellants, v Scott Ziegler, Defendant, Steven Altman, et al., Defendants-Respondents.

SUPREME COURT OF NEW YORK, APPELLATE DIVISION,
FIRST DEPARTMENT, 2007 NY Slip Op 9938;

Plaintiff proved that defendant attorney made mistakes in filing a UCC1 but did not demonstrate that its damages could be collected; it also waited too long to move to amend the complaint to add a former version of the law firm.

5. Voluto Ventures, LLC, derivatively on behalf of Harbour Entertainment, Inc., Plaintiff-Appellant, v Jenkens & Gilchrist Parker Chapin LLP, Defendant-Respondent, Harbour Entertainment, Inc., Defendant.

SUPREME COURT OF NEW YORK, APPELLATE DIVISION,
FIRST DEPARTMENT, 2007 NY Slip Op 9920

What are the chances of a corporation being on both ends of unrelated legal malpractice cases in the same week?  Here, Voluto wins a motion to dismiss in which it tried to enter into a long term lease for a movie studio on Staten Island.  The law firm is alleged to have botched the transaction.  The case continues.

For more on legal malpractice check out the New York Attorney Malpractice Blog.

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Lawline.com in the Blogosphere
Posted: January 9th, 2008
By: Zach Heller
Category: CLE Programming, Lawline.com, Opinion Corner

The other day I had a brief communication with Scott Greenfield, a Criminal Defense Attorney in New York.  He had written a post on the state of Continuing Legal Education and we both agreed that it had gotten stale.  We spoke about Lawline.com’s goals of making newer, more interesting programs that attorneys would enjoy.  He took our conversation and wrote a blog post about Lawline.com on his blog, Simple Justice.  

If you are interested in reading the entire post, please click here.

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Lethal Injections on the Hotseat
Posted: January 8th, 2008
By: Zach Heller
Category: The News Beat

A long debated issue in this country, the death penalty is once again the topic of some controversy.  In Kentucky, death row inmates have asked the courts to look into the lethal injection process.  The reason for this is because there have been a few instances of the drugs causing excruciating pain during the execution.  According to the inmates’ attorneys, this is a form of cruel and unusual punishment and the process should be made more efficient.

The Supreme Court are looking into the issue, trying to determine whether or not the lethal injection process needs to be changed.  At this point, all executions have been halted while the investigation takes place.  The halt is expected to last until this summer at the earliest.

If it is determined that the form of lethal injection practiced in Kentucky needs to be altered, it will affect more than 30 other states who use the same process.  This could mean an in-depth look into the death penalty and how it is carried out nationwide.  And with New Jersey outlawing the death penalty in December, it is clear that this issue is going to be in the headlines a lot in the coming months.

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Lawline.com Now Offering Continuing Legal Education (CLE) in Illinois
Posted: January 7th, 2008
By: Zach Heller
Category: CLE Programming, Lawline.com, Press Release, The News Beat

Lawline.com is now offering online CLE programming to attorneys in the state of Illinois. As of January 1, 2008, Lawline.com was approved as an accredited provider of Continuing Legal Education by the Illinois MCLE Board. Illinois, which presently has more than 65,000 attorneys, introduced new CLE rules requiring lawyers to complete 20 hours of CLE every two years, including 4 hours of ethics/professionalism. Now these attorneys will be able to complete all of their MCLE requirements in an online Stress-Free environment.

In addition to saving attorneys time, Lawline.com wants to help attorneys save money by discounting its online CLE courses for new customers. For a limited time, Lawline.com is offering one-click bundles for Illinois lawyers that fulfill all mandatory 20 credits for only $399, which is less than $20 per credit. To take advantage of this offer, attorneys can either call 1-800-LAWLINE (529-5463) or visit Lawline.com (www.lawline.com).

Illinois CLE Bundle - $399

Lawline.com has been providing easy to use, online continuing legal education since 1999. They continue to grow; now serving more than 35 states across the country. “We are excited to bring our online CLE to the great state of Illinois,” says Lawline.com president David Schnurman, “we believe that continuing education should be convenient, as well as interesting and informative.” Through streaming audio & video courses, as well as MP3 downloads, Lawline.com continues to bring Stress-Free Continuing Legal Education to attorneys nationwide.

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Friday Five: Marketing in the New Year
Posted: January 4th, 2008
By: Zach Heller
Category: Business Development Skills, Career Corner, Entrepreneurship, Friday Five, Lawline.com, Marketing Tips, Technology Corner

Happy New Year!  We move boldly into a new year with new possibilities.  As lawyers and businessmen alike, it is important to use the new year to develop new strategies of growth and success.  2008 marks the year that new internet technologies and increased market awareness should lead to many new and effective ways of marketing.  Technologies that once seemed too difficult to master or too futuristic to be effective are now intuitive and efficient.  To kick off the new year of the Lawline.com Friday Five, here is a list of new technologies that you can use to help jump start a year of business development.  Enjoy!

TOP 5 TECHNOLOGIES TO TAKE ADVANTAGE OF IN 2008

1. Email.  Today the traditional uses of email as a means of communication have become so commonplace that it has become vital to the day to day activities of many individuals.  More and more, email is becoming a marketing tool favored by many to communicate with current and potential clients/customers.  Surveys, promotions, newsletters, and other email mechanisms can be automated to provide customers with information easily and efficiently.

2. Blogging.  Everywhere you look, people are blogging.  It is important to see that blogging has emerged out of a way for a few web users to write down their opinions on certain topics, and into a way that companies and clients alike discuss the most important aspects of any industry.  Blogging can be used to let people know what is going on behind closed doors, and to encourage an interactivity between businesses and their customers.  It takes the companies goals and values and helps match them up with their customers.

3. Video.  Online video has become mainstream.  Videos can be used in a number of ways as a marketing tool.  Websites like YouTube, Google Video, and the like make it easy to upload and host videos anywhere.  Videos can be used to share offerings, discuss values, showcase talents or highlight expertise.

4. Social Networking.  Networking sites are everywhere.  For every tiny niche or industry, there is a social network of people online ready to share their ideas and experiences.  Along with that, there are social bookmarking sites that allow users to share things they find on the internet.  It is important to take advantage of the communication channels there.  Companies can take an active role in discussions, listen to what people are saying, and mold the way they approach new clients based on that information.  It is a great way to create a brand name that appeals to the masses.

5. Podcasting.  News, opinions, lectures, and ideas are all being shared in the form of podcasts across the internet.  It’s just another form of online media that allows internet users to really listen to things they are interested in.  Just like online video, this can be a great way to showcase talents and experience on a given subject.  For lawyers, you can feature yourself on a podcast that reveals your knowledge of a certain practice area to potential clients on many online forums.

It does not matter what you use it for, only that online media and marketing technologies are for everyone.  Treat your practice like a business, and take advantage of everything available to grow that business.  We wish everyone the greatest success in 2008.

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Thursday Attorney Malpractice Update 1/3/08
Posted: January 3rd, 2008
By: Andrew Bluestone, Esq.
Category: Attorney Malpractice, The News Beat

THIS WEEK’S CASE IN LEGAL MALPRACTICE

We continue to discuss Barnett v. Schwartz, 2007 NY Slip Op 09712, Appellate Division, Second Department, Decided 12/11/07.  Last week we talked about the definition of “but for” and how it related to “a” or “the” proximate cause.

The case also stands for a somewhat novel principal.  Prejudgment interest appears to be permitted in legal malpractice, whether it would have been permitted in the underlying case or not. This wide sweeping pronouncement appears to apply not only to recognized breach of contract causes of action, but to personal injury legal malpractice damages, too.

“CPLR 5001 operates to permit an award of prejudgment interest from the date of the accrual of the malpractice action in actions seeking damages for attorney malpractice”, citing Horstmann v, Grasso PC, 210 AD2d 671; Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 444 (2007)

THIS WEEK’S STORY IN LEGAL MALPRACTICE

States continue to discuss whether there should be mandatory legal malpractice insurance, or in the alternative, mandatory insurance disclosure.  From a public policy point of view, each proposal has the effect of creating greater protection for the public.

In California, an original proposal to require disclosure has been watered down to situations in which “it is reasonably foreseeable that the attorney will represent a client for more than 4 hours.”

Right now, the California State Bar Committee on Regulation, Admissions and Discipline is worried about the reaction of small firms and solos.  State Bar Governor John Dutton said: “They know this is going to do very little but adversely affect them.”

For more on legal malpractice check out the New York Attorney Malpractice Blog.

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The "Truth" as it Relates to the Practice of Law
Posted: January 2nd, 2008
By: Zach Heller
Category: Career Corner, CLE Programming, Lawline.com, Lawyer Profiles, Opinion Corner, SHOWCASE CORNER, Videos

Should lawyers be constrained by the truth?  That is a question that carries with it a lot of moral and professional issues.  It is also a question that can be answered in many different ways depending on the given situation, or the person responding.  That is why it makes the perfect subject for a Continuing Legal Education seminar.

Lawline.com recently filmed a new CLE program featuring Joel Cohen, Michael Ross, and James Bernard.  The three attorneys discuss different ways that the “truth” affects the way the law is practiced.  They give a good overview of different situations in which the truth can help or hurt a case, and what the ethics codes say on the subject.  Drawing from real world experience as well as a firm grasp of professional responsibility rules, the conversation covers many ethical questions from every angle.

This program is filmed as a roundtable discussion between the three attorneys.  Every time a new question is posed, each attorney offers their opinion of the matter.  This makes for a very interesting video that fulfills one hour of the mandatory ethics CLE requirements.  Please enjoy a short excerpt from the lecture below, and keep an eye out for the full course on Lawline.com.

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