On Wednesday, U.S. District Judge Susan Bolton blocked several main components of Arizona’s strict immigration law bill only hours before it was set to takeoff.   This obstruction was viewed as a victory to the Obama administration as it attempts to maintain jurisdiction on this matter.

Arizona state officials are prepared to fight and while recognizing that this will be a long legal battle, they are not showing any signs of slowing down.   Governor Jan Brewer has already stated that an appeal will be filed to have the provisions reinstated.

The law was passed by the state-legislature three months ago and created tougher immigration regulations that were expected to drive out nearly half a million illegal immigrants from Arizona.  Some of the provisions that were blocked include: the requirement for immigrants to carry their papers on them at all times and the requirement of police officers to determine the status of immigrants if they had justified reasoning to believe they are illegal.

The rulings by Judge Bolton have been considered a great triumph for Obama and his goals towards creating a comprehensive policy that compromises with the Republicans’ contrasting agenda.   The administration is aiming to not condone illegal immigration, but to provide a way for the illegal immigrants to attain legal status and contribute positively towards society.

However, Arizona’s plans to move forward with an expedite appeal are keeping Obama’s golden goal still out of reach.  It would not be unexpected for the case to reach the U.S. Supreme Court, but in that case this battle will not just be a very long one, but a very costly one at that.

So, what is your take on the matter?  Is Arizona's tenacity going to result in tougher Immigration laws? Or is this White House victory just the first of many, providing hope that someday illegals will be accepted and legal members of society?

Check out Lawline's newest Immigration Law courses to keep informed on the latest in Immigration Law.

Financial Downturn and Fraud Coupled with Legal Malpractice

The question of whether legal malpractice litigation is tied to [and affected by] downturns in the financial and economic worlds is often asked.  Our answer is that legal malpractice litigation is apt to come up in every situation where attorneys are present.

The Drier episode, punctuated by fraud, crimes and large money numbers is a prime example.  In this NYLJ article by Nate Raymond we see that opinion letters assuring some aspect of a transaction, issued by attorneys, are now the subject of a legal malpractice case.  From the article:

"Fortress Investment Group LLC filed suit against Ruskin Moscou Faltischek on Tuesday for allegedly issuing "utterly false" legal opinion letters used by ex-lawyer Marc S. Dreier, who is now in prison for his role in a massive Ponzi scheme.

In a complaint filed in Manhattan Supreme Court, Fortress claims the Uniondale-based law firm issued three letters that Mr. Dreier used to defraud the investment firm out of $50 million. The suit against Ruskin Moscou follows one filed by Fortress in December against Dechert that made similar allegations.

Legal Malpractice Claims Reinstated Against Boies Schiller

Yesterday, the Appellate Division, First Department, reversed Supreme Court and reinstated the negligence causes of action on behalf of Mary Anne Fletcher against Boies Schiller in Fletcher v Boies, Schiller & Flexner, LLP; 2010 NY Slip Op 06140 ;Decided on July 20, 2010 .

From the Decision:  "Plaintiff, a fashion model, pleaded that a prominent agency mismanaged her and lost or withheld her crucial portfolio; that she had evidence of a scheme involving bogus expenses charged by that agency against other models; that images of her were profitably used by a large retail chain, wrongfully and without her authorization, via a subsidiary; and that a second agency had interfered with bookings that would have earned her $275,000, and instead booked another model for those jobs.

Plaintiff further pleaded that, when she consulted the Boies Schiller law firm and met with defendant Hayes, she was persuaded to turn over a large body of self-gathered evidence and told that her claims were worth large, specified amounts, and that the firm, and defendant Hayes concealed a conflict of interest between her and existing classes in state and federal actions; excluded her from the federal class action; subordinated her interests to those of other class members; participated lackadaisically in settlement discussions; and failed to timely file a claim in a crucial bankruptcy proceeding while successfully prosecuting the claim of the federal class.

Sometimes It Just Wasn't the Attorney in Legal Malpractice

One theme that we have considered over the years is whether attorneys get preferential treatment in legal malpractice litigation.  Are motions to dismiss granted on too little evidence?  Do the attorneys get the benefit of the doubt?  Is the fact that legal malpractice law is written mostly by attorneys, is decided upon by attorneys and affects attorneys sometimes dispositive of the outcome?

Well, all that aside, sometimes the client just can't help themselves.  Here is an example from today's NYLJ:  Uzamere v. Uzamere;  KINGS COUNTY;  Justice Schack;

"Pro se plaintiff CHERYL D. UZAMERE (UZAMERE) moves by order to show cause for: summary judgment, pursuant to CPLR Rule 3212; and, upon the failure of all defendants to answer, pursuant to CPLR §3215, for a default judgment of $100,000,000.00 plus interest against defendants SENATOR EHIGIE EDOBOR UZAMERE a/k/a "GODWIN E. UZAMERE" (SENATOR UZAMERE), ALLEN E. KAYE, P.C., ALLEN E. KAYE, ESQ., HARVEY SHAPIRO, ESQ. (SHAPIRO), BERNARD J. ROSTANSKI (ROSTANSKI), and JACK GLADSTEIN, ESQ. (GLADSTEIN), in an action arising from defendants' alleged misdeeds and misconduct related to plaintiff UZAMERE's 1979 marriage and subsequent abandonment by SENATOR UZAMERE. Defendants ALLEN E. KAYE, P.C. and ALLEN E. KAYE, ESQ. will be collectively referred to as "KAYE."

9/11 and Judicary Law 487 in Legal Malpractice

9/11 is almost 10 years behind us.  Its direct effects may have passed, but the indirect effects still resonate.  Here is a fraud, foreclosure scam and legal malpractice case which arises out of the post 9/11 world.

Cullen v. Steinberg, 2010 U.S. Dist. LEXIS 62138 is a case in which plaintiff was the surviving widow of a murdered victim of 9/11.  She invested her compensation in real estate, and then fell prey to a variant of a scheme.  "In 2004, plaintiff received $ 1.9 million in compensation for her husband's murder in the 9/11 attacks on the World Trade Center. She invested some of the money in [*4] real estate, buying residential property at 653 Jacey Drive in Fort Lee, New Jersey in 2004, and at 1400 Outlook Avenue in the Bronx in 2006."
 
"At a party in December 2006, plaintiff met Maximo (Max) Almonte, who had gone to grammar school with her. Almonte initially told plaintiff he was a stock broker; plaintiff learned in May 2007 that he was actually a felon who had been convicted of real estate fraud. Almonte moved in with plaintiff at 653 Jacey Drive two days after meeting her at the party.

 

In sophisticated negotiations, the parties will typically find the standards that favor their side and use their most favorable standards to independently justify the “fairness” of their positions.  The parties will then negotiate over which standard represents the most fair and applicable justification.

Such is the case in the current NBA collective bargaining negotiation.  Billy Hunter, the NBA players’ union director, commenting on the owners' claim to have lost $370 million last year said, "There might not be any losses at all. It depends on what accounting procedure is used."  He then said, "If you decide you don't count interest and depreciation, you already lop off 250 of the 370 million dollars." The union’s preferred standard here is “real losses,” which don’t include interest and depreciation.

In response, NBA deputy commissioner Adam Silver said, "Part of the problem with the existing system is it's based largely on revenue, not net revenue.  Although our actual revenue numbers were better than what we projected, it came at a large cost." The NBA’s preferred standard here is net revenue.

Hunter further stated the players have little confidence in the owners’ projections and will offer their own interpretations of the league's finances at the next bargaining meeting.

What lesson can we learn from this? Research the applicable standards before your negotiation.  Then come prepared to use the most favorable ones and discredit the most unfavorable ones.  Finally, negotiate over the most appropriate objective criteria.

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.
 

Joe Ahmad discusses several contract/common law theories that employers typically face.  He provides us with insight from the employers' perspectives by probing questions such as, "What are their interests?" and "Why are they bringing a claim?”.   Furthermore, he explains several of the issues concerning competition contracts and concludes by referencing certain struggles of selective enforcement.

This excerpt is from "What the Texas Attorney Needs to Know About Unfair Competition and Non-Compete Claims".   To preview this course, follow this link.

Ken Hagreen describes that although stress can be beneficial for many lawyers, in some cases it can become a gateway to other illnesses.  He provides us with several daunting statistics about potential impairments that can affect lawyers.  He wraps up by stressing that understanding these illnesses and reaching out to lawyers in distress is imperative.

The Federal Trade Commission filed a 75 page brief this past Wednesday in an appeal from the United States District Court for the District of Columbia, arguing that lawyers should be held to the "red flag" standards that have pushed creditors to increase their role in the prevention of identity theft.

The appeal stems from the American Bar Association's suit against the FTC for its regulations of the legal profession and loose interpretation of the term "creditor" In August 2009.  U.S. District Judge Reggie Walton of the District of Columbia ruled in favor of the American Bar Association.

The FTC states in the brief that the definition of "Creditor" in the Fair and Accurate Credit Transactions (FACT) Act of 2003 and the Equal Credit Opportunity Act indeed encompasses lawyers. The brief states, "The entities to be covered under the identity theft provisions are to be covered based either on their status as a “financial institution” or on activities that make them a “creditor.”

Since lawyers often take cases without being paid in advance, the FTC, in this definition, argues that they should be considered to be creditors.

Recently, Lawline.com's Yan Ross produced two CLE programs on this issue. The identity theft expert examines the newly implemented anti-identity theft legislation and the ethical implications of complying with the FTC’s Red Flags Rules.

In his first program, FTC's Red Flags Rules Series: Ethical Implications for Attorneys and Their Clients, Mr. Ross engages the viewer in a discussion of the tangible and intangible costs and benefits of observing the new regulations and the reasons why attorneys have been exempted from compliance in his program .

Ross also examines the FTC’s role in policing identity theft and discusses the principal provisions of the Red Flags Rules in a second program entitled, FTC's Red Flags Rules Series: Are You Ready for Enforcement? Talking points include the history and development of the new legislation and the practical implications of compliance with the rules, and penalties for non-compliance.

Kimberly Russel discusses the basics of the Permanent Parenting Plan and the importance of each component. She then goes on to inform parents about the Shared Income Approach and highlights four things that parents should understand in order to reach a mutual agreement.

Stacy Lynch discusses the underlying rights of authors for their bodies of work, specifically citing the rights retained when their writing is being projected on the big screen or the big stage. In addition, she notes key facts an attorney must know when ownership is being transferred.

This clip is from, "An Introduction to Contractual Issues in the Film and Television Industries".  To preview this upcoming Lawline.com course, follow this link.

In today’s 24/7 news environment, coupled with the increasing influence of blogs on media, attorneys are expected to provide counsel to clients when facing or anticipating a media firestorm. Though attorneys and journalists have often been at loggerheads, attorneys must have a basic skill set to work effectively with the media and be cognizant of their role in crisis communication plans. At their very basic form, these plans show the flow of information to constituents both internally and externally: media, clients, staff and other key groups involved.

Large-scale crises from recent years, such as the shootings at Virginia Tech, Katrina, and the fires in Southern California, demonstrate how well-prepared the organizations involved were. No organization, business, government or high-profile individual is exempt from a crisis played out in the public arena. The Institute for Crisis Management’s 2009 annual report lists the industries that are most prone to crisis, with banking, security brokers, and the aircraft industry topping the list.


A crisis is essentially any situation that threatens the integrity or reputation of an organization. Crisis can range from a class action lawsuit, a high-profile client involved in some criminal activity or a product recall to a manmade disaster.

They can be short or long-term. This could be an issue that internal staff are aware of but have not yet broken out in the public arena. What is certain, though, is that the lines of communication must be open during a crisis. Keeping the lines of communication open involve several strategies including legal and media strategies.

Having a one-sided strategy, such as winning in a court of law, will be minimized if the firm or the client’s reputation has been destroyed in the public opinion court.

To put it another way, if marketing and public relations builds brands and reputations, then crisis communication is all about prevention and/or minimizing the loss of reputation in the court of public opinion.

In the final outcome, an ounce of prevention is far better than reaction devaluing credibility, so therefore being prepared is critical. With that in mind, you need to have a couple of things in place: a crisis communication plan and crisis communication team. Crisis communication plans are templates; they provide an organization with the framework of who will be responsible for what when and if a crisis should occur. Without crisis communication plans—whether you are a solo attorney, a law firm representing a high-profile client, or a law firm representing a large corporation—you will be viewed as inept.

It’s also important to note that these templates must be fluid, because each crisis will be different. Adjustments to the crisis communication plans will be necessary, as these are living organisms.

Paramjit L. Mahli is with award winning SCG Legal PR Network. She is a former journalist who has worked with CNN Business News, Canadian Broadcast Corporation and Journal of Commerce. Comprised of small and large firms, SCG Legal PR Network connects legal experts with reporters nationally and internationally. Ms. Mahli is a contributor to Legal Broadcast Network and writes frequently for Technolawyer. She also trains and gives CLEs  regularly on media relations.

Alan Schnurman discusses the vital role the attorney plays in the area of land development. In many situations, it is the attorney that takes on the managerial role. Schnurman goes on to explain that in order to make the best deal for your client, you must identify what your client is really asking you to accomplish and determine whether or not it is feasible.

This is an exerpt from an upcoming Lawline.com course: An Attorney's Role in a Land Development Deal. For a free preview, follow this link.

As detailed in The New York Times, Honest Tea is a specialty juice and tea company with 2009 revenues of $47 million. Coca-Cola owns 40% of the company with an option to buy the remainder next year. One of Honest Tea’s products marketed for consumption by children features “no high-fructose corn syrup” on its label.  Coca-Cola asked Honest Tea to change or remove the label. Coke doesn’t want the ingredient disparaged because it uses it in other products.

Who has the leverage advantage? You might assume Coca-Cola because it is much larger and may soon own Honest Tea outright. However, size alone does not guarantee a leverage advantage. In fact, size is much less important than a) both sides’ need levels and b) both sides’ best alternatives (or Plan Bs to doing the deal with each other).

Here, Honest Tea’s need level is low because they legally retained control over its products’ contents in its agreement with Coke and could harm its customers’ trust if it removed or watered-down the label. At the same time, Honest Tea wants to protect its relationship with Coke which provides much wider distribution and may soon become its sole owner.  Maintaining the status quo (no agreement) is a much better alternative for Honest Tea than losing Coca-Cola’s distribution.   

From Coke’s perspective, despite its size advantage, its need level is higher because its products containing high-fructose corn syrup are much more important to the company’s bottom-line.  At the same time, it is facing decreasing demand for soft drinks and is seeking ways to increase its presence in the growing natural and health drink markets.  If a resolution can’t be reached, Coca-Cola could maintain the status quo or look for alternative health drink companies to invest in but neither may be as desirable to Coke as reaching an acceptable compromise with Honest Tea.

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com

Ken Hagreen sheds light on the topic of gambling and how it can progress from a simple game of chance to a serious addiction for some lawyers.  Gambling is a means of dealing with stress, and is not particularly a bad means, just as long as you maintain control.  Hagreen explains the science behind losing that control and the necessary steps a lawyer should take to get back on track.

This clip is from "Lawyers at Risk: Gambling".  To view the course in its entirety, follow this link.