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Friday Five: Be Happy Today is Friday. It is the second Friday in the month of May. And it is the first Friday of the rest of your life. I got an email last night with the subject line, 21 Secrets of a Happy Life: Each New Day Means Something. As I read through the list, most of the items are the same little tidbits of knowledge you hear from time to time. But some of them jumped out, and the fact that they were listed all together made them meaningful. So I have comprised five of them here as things that you should do every Friday. If everyone followed these tips at least one day a week, we’d all be better off. 2. Call an Old Friend or Acquaintance You Haven’t Spoken To in a While Just to Chat. When you have some time, think of a relationship that you really have not kept up with as much as you would like. Again, a new person every Friday will help keep the spirit going. When they answer, be genuinely excited to hear their voice. Don’t have an agenda, just casually catch up and ask questions like how they are doing and what they have been up to. 3. Tell Someone in Your Day to Day Life that You Appreciate Everything they Do and Mean it. This can be someone you work with, a family member, or even someone you see casually in passing like the woman who sells you coffee every morning. Look them in the eyes and tell them they do a great job. Though they may be caught off guard, that will stick with them the rest of the day. 4. Take 30 Minutes and Just Relax By Yourself. This is always a good idea. Leave the distractions and pressures behind and just sit. Whether it be outside, in your office, or in your home, just be alone with your thoughts. Don’t concentrate on anything in particular, just let your mind wander. 5. Laugh. No explanation needed. It is amazing what laughter can do to the way you are feeling. Just the physical act of smiling and laughing has been proven to elevate the worst of moods. Laugh by yourself, laugh at yourself, laugh with others, it does not matter as long as you are laughing and enjoying the moment.
Thursday Attorney Malpractice Update 5/8/08 William Jacobs, et al., Plaintiffs-Appellants, v Richard L. Kay, et al., Defendants-Respondents.
3460, 117332/05 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 2008 NY Slip Op 3710; April 24, 2008, Decided
April 24, 2008, Entered “After settling with the executrix their objections to the probate of their father's will and trust, plaintiffs commenced this action against the attorneys for alleged fraudulent misrepresentation, fraudulent concealment, legal malpractice, breach of contract and for treble damages, in the preparation of those instruments. Not only does HN1New York not recognize a right of action for tortious interference with prospective inheritance (see Vogt v Witmeyer, 87 NY2d 998, 665 N.E.2d 189, 642 N.Y.S.2d 619 [1996]), but having earlier settled their objections, plaintiffs may not now seek, in effect, to challenge indirectly the validity of the will and trust by suing these defendants with whom they had absolutely no privity.
Absent a contractual relationship between the professional and the party claiming injury, the potential for liability "is carefully circumscribed" (William Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 425, 522 N.E.2d 21, 527 N.Y.S.2d 176 [1988]). A viable tort claim against a professional requires that the underlying relationship between the parties be one of contract or the bond between them so close as to be the functional equivalent of contractual privity (Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 539 N.E.2d 91, 541 N.Y.S.2d 335 [1989]). However, plaintiffs have not pleaded any facts setting forth the existence of a contractual relationship or the functional equivalent thereof between themselves and defendants. Moreover, they have no viable cause of action for treble damages under Judiciary Law § 487, since defendants' purported deceit did not occur during the course of a pending judicial proceeding (see Costalas v Amalfitano, 305 AD2d 202, 203-204, 760 N.Y.S.2d 422 [2003].” John Randolph Hearst, Jr., appellant, v Barbara Hearst, et al., respondents. (Index No. 06-01959)
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 2008 NY Slip Op 3590; 2008 N.Y. App. Div. LEXIS 3495 April 22, 2008, Decided “The Supreme Court also improperly dismissed the cause of action alleging legal malpractice insofar as asserted against the Ackerman defendants. A prima facie case of legal malpractice requires proof that the attorney failed to exercise the ordinary and reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of that duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, 867 N.E.2d 385, 835 N.Y.S.2d 534; Bauza v Livington, 40 AD3d 791, 792-793, 836 N.Y.S.2d 645; Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562, 755 N.Y.S.2d 726). Here, the plaintiff alleges that Ackerman represented both Barbara and himself, and was thereby burdened by a conflict of interest, that Ackerman aided Barbara's misappropriation of his assets, and concealed these activities from him. Consequently, there are triable issues of fact with respect to the cause of action alleging legal malpractice (see Tabner v Drake, 9 AD3d 606, 610, 780 N.Y.S.2d 85), as well as the cause of action alleging the aiding and abetting of fraud, insofar as asserted against the Ackerman defendants.”
EDWARD H. ARNOLD, Plaintiff,
-against-
KPMG LLP, and SIDLEY AUSTIN BROWN & WOOD LLP, Defendants.
05 Civ. 7349 (PAC) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 2008 U.S. Dist. LEXIS 25855 March 28, 2008, Decided March 28, 2008, Filed Plaintiff Edward H. Arnold ("Arnold") brings this action against Defendants KPMG ("KPMG"), an accounting firm, and Sidley Austin Brown & Wood ("Brown & Wood"), a law firm, for damages allegedly suffered when he bought tax shelters from KPMG with Brown & Wood's endorsement. The tax shelters, which were effectuated through the purchase and sale of securities, were designed to offset Arnold's income but were determined to be unlawful tax-avoidance schemes.
The Court held oral argument on the matter on March 6, 2008. (Transcript of Oral Argument, March 6, 2008 ("Tr.").) The Court ruled that: (1) Arnold's federal securities claims are time-barred by operation of the relevant statute of limitations (Tr. at 7-11); and (2) Arnold's numerous state law claims merge into single claims for professional malpractice against each defendant (Tr. at 11-12). In light of these holdings, the Court heard oral argument as to: (1) whether the Court should exercise supplemental jurisdiction over the state law malpractice claims in light of the dismissal of the federal claims, and (2) whether the state law malpractice claims are time-barred under the statute of limitations. The Court now exercises its supplemental jurisdiction over the state law malpractice claims and dismisses them as time-barred.
In this case, Defendants argue that the three-year statute of limitations accrued when the opinion letters were issued. Arnold contends that because the fraudulent scheme was continuous, the claim did not accrue against either Defendant until KPMG revealed its fraudulent conduct by entering into a deferred prosecution agreement with the Department of Justice in August 2005. In the alternative, Arnold argues that the statute of limitations was tolled.
The Court rejects the argument that the appropriate date of accrual was August 2005; the claim for malpractice accrued when each Defendant issued its opinion letter. YAMIRA SANTIELI, Plaintiff, v. LAWRENCE M. LAPINE, Defendant.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT 2008 U.S. Dist. LEXIS 28251 March 26, 2008, Decided To recover on a claim of legal malpractice, plaintiff must establish (1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation; and (4) damages. Plaintiff must produce expert testimony that a breach of the professional standard of care has occurred, and that the breach was a proximate cause of the injuries suffered by the plaintiff. Dixon v. Bromson and Reiner, 95 Conn.App. 294, 297-98, 898 A.2d 193 (2006); Solomon v. Levett, 30 Conn.App. 125, 128, 618 A.2d 1389 (1993). In malpractice cases, expert testimony serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant's action in light of that standard. Vona v. Lerner, 72 Conn.App. 179, 187, 804 A.2d 1018 (2002). Plaintiff makes no representation that she intends to disclose an expert witness and she has filed no motion to do so. Rather, she argues that this case falls within the exception to the expert witness requirement where there is "such an obvious and gross want of care or skill that the neglect is clear even to a layperson." Davis v. Margolis, 215 Conn. 408, 416 n. 6, 576 A.2d 489 (1990). An expert may not be necessary when the legal malpractice involved a failure to follow rules of procedure, such as filing motions or attending hearings. See Dubreuil v. Witt, 80 Conn.App. 410, 422, 835 A.2d 477 (2003). However, the instant case does not involve an obvious and gross want of care that would be clear to a lay person. Here, assessment of whether defendant breached the standard of care requires expert testimony as to the division of marital assets and the advice provided by defendant. Accordingly, summary judgment is appropriate.
Online CLE Receives Added Boost of Confidence Much has been said in the legal community about the necessity for Continuing Legal Education requirements. Generally, the debate has shifted as much as people will admit that CLE does help keep certain standards of ethics and professional knowledge among practitioners. However, Online CLE, considered self-study and distance learning in many states, brings up an entirely different debate. Some states, such as New York and California, allow all of the mandatory credit requirements to be fulfilled on the internet, through websites like Lawline.com. However, others are not as quick to admit that Online CLE platforms offer the right type of learning environment. Some allow partial fulfillment of credits online, and others still do not allow online courses to be taken at all.
But recently, the push toward Online CLE has been helped by two states. First, Illinois introduced its first round of Continuing Legal Education requirements (the first deadline is June 30, 2008) and decided to allow all 20 credits to be fulfilled online. Then, in March, Tennessee increased the amount of credits accepted through online platforms from 6 to 8. As states continue to realize that Online CLE is every bit as informative and educational as live CLE programs, the trend will continue toward the internet as the main arena for CLE compliance. Not only are online courses comprehensive and interesting, they offer a simple, low cost solution to attorneys who have difficulty attending live events.
To view Tennessee CLE options on Lawline.com, you can use the following links:
4 Months Gone: Evaluate Your Efforts Happy Cinco De Mayo to everyone! It’s Monday and that means it’s time to get back to the office. May 5th means that we have made it a third of the way through another year. So far, this year has been one marked by overall economic troubles and rather interesting presidential primaries. It can be difficult at times to escape the day to day grind and take a step back to look at things on a larger scale. But now that we are in the fifth month of the year, I believe it is time to take a day or two to analyze how the year is going for you in a business sense.
Friday Five: Get Out and Eat All across the country its getting warmer. And, as it usually does around this time of the year, it is getting harder and harder to grind out each day at the office. It is important on days like that to find ways to break up the day and keep yourself moving. That is why I would recommend getting out of the office for lunch as much as possible. It is enough that you spend 40-50-60+ hours at the office each week, you don’t need to add to it by eating there too. It is the perfect break to the day, and it will keep the motivation level higher to get you through nice warm days like this. Happy Friday, see you in May! TOP FIVE REASONS TO GET OUT OF THE OFFICE FOR LUNCH
1. MIDDLE OF THE DAY. Lunch is the perfect timing for a break becomes right in the middle of the work day. If you are going to break up the time, there is no better time to leave the office. By the time you get back, you will be refreshed and ready to crack down for the next couple of hours.
2. SIT OUTSIDE. If the weather permits, there is nothing better than sitting outside during lunch. This gives you a chance to enjoy the weather and get out of that stuffy office. There is nothing better than sitting there, eating your sandwich, and letting the sun bake away your stress.
3. MEET WITH CLIENTS. Lunch is the perfect opportunity to meet with clients casually during your busy week. Take advantage of some of the extra time you have to improve your client relations. And if there are no clients to meet with, go out with colleagues and friends to get your mind off of work, which leads me to my next point. 4. CLEAR YOUR HEAD. No matter what, getting out of the office is like an escape from the pressures of work. Just sitting down for a short meal somewhere other than the office allows you to drift away and think about anything else other than whatever you are working on. That way you do not have the extra stress of work leaving the office with you. 5. ENJOY THE MEAL. It is far easier to fully enjoy a meal outside of the office than in it. End of story.
Law Firms Going Green and Loving It Green, it’s the buzzword of the decade. But what does it really mean to say that businesses are going green? Well, for different businesses it can mean different things. But overall, it means that the company is making efforts and strides to reduce waste, conserve energy, become more sustainable, and give a little something back to the environment. Companies have started to see that not only is going green good for the environment and public relations, it can actually be a real money saver in the long term.
Importance of Social Networking Sites in Recruiting Lawyers are notoriously slow adapting to change. Changes in the way we do business, in the way we hire new employees, in the way we reach out to the public, are never headed up by the legal community. It is a profession marked by long standing traditions and a very specific set of values and standards. But now, as new technologies continue to open up doors for all businesses every single day, it is important that even lawyers and law firms try to keep up.
Friday Five: The Pope is in Town Welcome back to Friday and the return of the Friday Five. After a week off, we decided that it was time to get back to the old ball game. Being located in New York City has its advantages, just not when the Pope is in town. Try getting from point A to point B when all points are closed. Difficult is an understatement. Anyways, today the Pope spoke before the UN and addressed some pressing international issues. I feel he may leave the U.S. without addressing some of our most pressing issues. What issues am I speaking of, find out below.
New Lawline.com Referral Program Means Savings for Attorneys New York, NY - April 17 -- Lawline.com, a leading provider of Online Continuing Legal Education nationwide, has launched its brand new Refer-A-Friend Program. The program allows members of the site to refer other lawyers to Lawline.com, for which they will be compensated with Free Continuing Legal Education (CLE) Credits. In addition, those attorneys that are referred will be offered a one-time discount of 15% off of their initial purchase.
Thursday Attorney Malpractice Update 4/17/08 CASES THIS WEEK IN LEGAL MALPRACTICE Jusuf Becovic, et al., Plaintiffs-Respondents-Appellants, v Poisson & Hackett, et al., Defendants-Appellants-Respondents. 3142, 118056/04 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 2008 NY Slip Op 2644; 2008 N.Y. App. Div. LEXIS 2594 March 20, 2008, Decided Plaintiffs were physically injured, and the placement and maintenance of a garage sign was an important element of the personal injury case. They lost and sued the attorneys. The legal malpractice case was dismissed on summary judgment. Note the parting comment on discovery. “In this legal malpractice action, plaintiffs are unable to demonstrate that they would have succeeded in the underlying personal injury action "but for" defendants' conduct (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434, 866 N.E.2d 1033, 834 N.Y.S.2d 705 [2007]). Contrary to the motion court's conclusion, plaintiffs cannot show that the defendants in the underlying action created the allegedly dangerous condition by an affirmative act of misfeasance (see Mercer v City of New York, 88 NY2d 955, 670 N.E.2d 443, 647 N.Y.S.2d 159 [1996]; Kelly v Berberich, 36 AD3d 475, 476-477, 828 N.Y.S.2d 332 [2007]), [**2] and the claim that said defendants failed to maintain the garage sign that was purportedly the instrumentality that resulted in the injury is not sufficient for this purpose. Plaintiffs also failed to raise an issue of fact regarding notice of the condition, since their sole opposition was hearsay (see Wertheimer v New York Prop. Ins. Underwriting Assn., 85 AD2d 540, 541, 444 N.Y.S.2d 668 [1981]). In view of the dismissal of the instant action, we need not address the arguments on plaintiffs' cross appeal for spoliation sanctions. We note, however, that plaintiffs' position is lacking given the long period of inaction [*2] by their attorneys in this action in failing to avail themselves of the opportunity to seek third-party discovery.” Naida I. Velazquez, etc., appellant, v Bruno Decaudin, et al., defendants, Arnold Streisfeld, etc., et al., respondents. (Index No. 3191/06) 2006-10455, 2007-05614 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 2008 NY Slip Op 2575; 2008 N.Y. App. Div. LEXIS 2514 March 18, 2008, Decided “The complaint alleges, insofar as is relevant here, that Jose, believing, on the basis of misrepresentations by certain of the defendants, that he was refinancing to save his mother's property from foreclosure, entered into a contract to convey the property to Decaudin for $ 390,000. The property allegedly was worth $ 600,000 at the time. When the closing was scheduled, Jose [**5] allegedly was advised that only he had to attend the closing, but that he should bring with him his mother's social security card and driver's license. At the closing he allegedly was introduced to Streisfeld, and was told that Streisfeld was his attorney. [*3] The complaint alleges that, prior to the closing, Streisfeld had been provided with a copy of the power of attorney by which Jose was purporting to act in connection with the closing. The power of attorney, which had been executed by Jose's mother, appointed Jose and his sister, the plaintiff, Naida I. Velazquez, acting jointly, as attorneys-in-fact for their mother. Despite the requirement that Jose and the plaintiff act together, however, the complaint alleges that Jose acted alone in connection with the conveyance of the property and that the plaintiff was unaware of his actions in that regard. According to the complaint, the closing proceeded only after a lengthy meeting, from which Jose was excluded, between Streisfeld, the representative of the defendant Old Town Abstract Company, LLC (hereinafter Old Town), which was the agent of UGT, and the mortgage brokers, financial advisors, and other attorneys involved in the transaction. [**6] When the closing did proceed, Jose was taken into a room separate from the other participants, where he was advised that he was required to execute a deed, as well as a use and occupancy agreement and an option to purchase agreement. The use and occupancy agreement provided that Jose, who resided elsewhere, could continue to reside in the premises for a period of 12 months as long as he paid Decaudin's mortgage payments in a timely fashion during that period. The option-to-purchase agreement provided that as long as he did not default in his obligations under the use and occupancy agreement, Jose could purchase the property during that year for $ 370,500, which was the total amount of the two mortgages that Decaudin executed in favor of the defendant Sunset Mortgage Company at the closing. The complaint further alleges that, at the closing, Jose, Decaudin, Streisfeld, and the attorney for the lender executed an escrow agreement, pursuant to which no funds were to be disbursed, no documents were to be recorded, and no title insurance was to be issued until an original power of attorney in favor of Jose had been delivered to Old Town. The escrow agreement further provided that if the [**7] power of attorney were not delivered, the closing documents were to be returned to the respective parties. The complaint alleges that even though the power of attorney was never delivered to Old Town, the funds were disbursed and the closing documents were not returned, but were recorded, and UGT issued a policy of title insurance. The complaint alleges that the closing documents reflect that Decaudin paid approximately $ 295,000 to satisfy the outstanding mortgage indebtedness on the property and that the remaining $ 95,000 that had been borrowed from Sunset was disbursed to the defendants, rather than to the owner of the property, the plaintiff's decedent. Several months later, Jose defaulted in his obligations under the use and occupancy agreement that was executed at closing and DeCaudin initiated a summary dispossess proceeding, in which he was represented by the defendants Ira S. Clair, an attorney, and Clair and Gjertsen (hereinafter collectively Clair). The proceeding resulted in the issuance of a judgment in favor of Decaudin and a warrant of eviction. The complaint alleges that in a motion to vacate the judgment and warrant, Clair was made aware of the alleged defect in Decaudin's [**8] title but negligently failed to examine the relevant documents or do anything else to ascertain the true state of Decaudin's title.”
Lawline.com Launches New CLE Courses from Pincus Professional Education April 16, 2008 – New York, NY - Lawline.com, a national provider of Online Continuing Legal Education, is announcing the launch of brand new CLE programs sponsored by Pincus Professional Education. The courses will be hosted exclusively on Lawline.com starting April 15, 2008. Pincus joins Lawline.com as a partner, providing course content to a growing list of CLE programs featured on Lawline.com.
Child Custody Issues Redefined After a raid on a West Texas Polygamist compound last week, state officials are now preparing for one of the largest child custody cases in US history. All 416 children taken from the ranch are now being held in the custody of the state after their mothers were allowed to return to the ranch on Monday. The custody case, which will be historic in many senses, is underway as the mothers are asking for their children returned to them unharmed as soon as possible.
Originally the mothers voluntarily left the ranch with their children, but returned Monday in what many of them called a trick by state officials who did not inform them that they would have to leave their children behind. Lawyers will begin to sort through the many custody issues at hand at a hearing scheduled near the end of the week. The state of Texas will be looking to set many of the children up in foster care, whereas the mothers of the children will be trying to win back custody of their children at the ranch or elsewhere.
For more information you can read this article on ABC News, “Battle Over Sect Children Begins”. This will be an important case to follow as it is the first of its kind on this type of scale. It could set an important precedent not only in future child custody cases, but how cases like this are handled in the face of religion.
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