Social Media and Social Networks.  They are fast becoming a part of the professional world.  Even the legal profession has started to take notice of the power of social media.  And though we have only started to realize its potential value, it is important that those of us who are seeking innovative new ways to share knowledge and communicate take notice.

To start off this series of blogs on the topic of social media for attorneys, let us introduce the primary concepts.  Social Networking is defined as a social structure made up of individuals or organizations that share one or more common interdependency, value, belief, or goal.  And that same idea has been taken and transformed into new online technologies to make networking easier than ever before.

Popular social networks like Facebook and MySpace were introduced as ways to stay in touch with friends.  On top of them, other communities were built around specific niches and goals.  LinkedIn is a networking site built strictly for professional contacts and relationships. YouTube allows a community of users to share videos.  Flickr allows its members to share photos.  Twitter is a tool for open communication of ideas and events.  Even at the most basic level are blogs, wikis, and discussion boards, that open up communication and the flow of ideas.

This entire area is known as Web 2.0 Social Media.  It is built around the concept of openness and sharing.  It has turned into a way for people to communicate with other people, businesses to communicate with other businesses, the media to communicate with the masses, and an organization to communicate with customers and potential customers.

And it is entering the legal landscape now faster than ever before.  In fact, just last night Lawline.com’s President, David Schnurman, was featured in a panel discussion on Social Networking for Lawyers.  The presentation was held at New York County Lawyers’ Association for CLE Credit, and will be turned into an online course soon.

Begin to take notice of the shift towards online media for means of communication, marketing, and sharing.  And stay tuned for Part 2 of our Series next week.

The "Sophisticated" Client in Legal Malpractice

There is no lack of irony in legal malpractice litigation.  Because of the structure of the "case within a case" defendant attorney often takes on the defenses available in the underlying case.  So, plaintiff's attorney sees defendant attorney loudly and heatedly making the very same arguments that were made in the underlying action with absolutely no cognitive dissonance.

Here is an example in SF Holdings Group, Inc. v Kramer Levin Naftalis & Frankel LLP ;2008 NY Slip Op 08520 ; Decided on November 13, 2008 ; Appellate Division, First Department .
 
This was a fairly complicated transaction in which a plant in St. Thomas was left off the table.  Legal malpractice litigation ensued, and one defense was that plaintiff, a sophisticated business, knew that the plant was not part of the transaction.

Here is the interesting part.  The court held that being sophisticated, yet relying on the attorney is proper, and will not amount to a full defense to legal malpractice.  The attorney would argue that there can be no legal malpractice when the client understands the risks and the nature of the transaction.

The court held that such argument amounts to potential mitigation only. "Given the procedural context, the motion court correctly rejected Kramer Levin's argument that plaintiffs, as a matter of law, were aware that St. Thomas was not working capital based on the merger agreement itself. Kramer Levin did not conclusively establish, for the purposes of plaintiffs' alleged awareness, that the merger agreement on its face discloses that the St. Thomas facility was not included under the definition of working capital (see Held v Kaufman, 91 NY2d 425, 431-432 [1998]). Further, to the extent that Mehiel, a sophisticated businessman, executed the merger agreement on behalf of plaintiffs with full knowledge of its terms, "[a]ny negligence on the part of [the client] in reviewing the agreement is merely a factor to be assessed in mitigation of damages" (Mandel, Resnik & Kaiser, P.C. v E.I. Electronics, Inc., 41 AD3d 386, 388 [2007]
 
Prior Knowledge and Legal Malpractice Insurance

Whether attorney for Plaintiff or for defendant, each practitioner in the Legal Malpractice field has either a professional or personal interest in legal malpractice insurance.  No one, whether prosecuting or defending legal malpractice cases wants to lose or have coverage excluded, and attorneys do not want to have coverage lost for the defendants in a legal malpractice case.

Here is a blurb from McGuire Woods on prior knowledge exclusions in legal malpractice insurance:

"Professional liability and D&O insurers regularly rely on "prior knowledge exclusions" to restrict coverage. These exclusions apply if the insured knew, prior to commencement of the policy period, that the activity in which it was involved would result in a claim against it. Typically, cases involving prior knowledge exclusions turn on the extent of the insured's knowledge of the risk of a claim and whether that knowledge is sufficient to bar coverage.

Recently, in Executive Risk Indemnity Inc. v. Pepper Hamilton LLP, 865 N.Y.S.2d 25, 2008 N.Y. App. Div. Lexis 6885 (N.Y. App. Div. Sep. 23, 2008), the New York Supreme Court, Appellate Division construed a "prior knowledge" exclusion very narrowly in a declaratory judgment action involving a dispute over coverage for alleged legal malpractice. The court held that in order to apply the exclusion to claims against a law firm based on the wrongful conduct of the firm's client, the insurer must prove not only that the law firm had knowledge of its client's misconduct, but also that the firm participated in the client's wrongful conduct in such a way that it believed that it might be subject to liability for that conduct.

The coverage dispute arose from Pepper Hamilton's representation of Student Finance Corporation, which financed student loans and then securitized and resold them to investors. In March 2002, Student Finance's principal told a partner in the law firm that the company had been using its own reserve accounts to make forbearance payments for overdue loans. By covering up defaults, Student Finance allegedly made its securities more attractive to investors.
 
Recovering Workers' Compensation Liens in Legal Malpractice

Worker is injured on the job by a paving machine.  Worker collects WC benefits from his employment.  Worker sues paving machine manufacturer in products liability, and his attorney blows the statute.  Worker succeeds in legal malpractice.  May WC carrier recoup benefits?

Had the case been tried as a products liability case [not legal malpractice] in NY, the answer would be yes, recoupment.  Here, in this Florida case, the answer is no. Here is the blurb from Risk & Insurance.com.

"Case name:Columbia v. Brewer, No. 1D07-5658 (Fla. Dist. Ct. App. 10/22/08).

What it means: An injury suffered as a result of legal malpractice does not occur in the course of a claimant's employment, and the defendants in a legal malpractice case are not third-party tortfeasors under Florida law. As a result, the claimant's employer is not entitled to recoup the workers' compensation benefits it has paid from the proceeds of the legal malpractice settlement. Instead, it may sue the third party that caused the claimant's injuries if the claimant fails to do so within one year after the cause of action accrues. "

In today's age, it is normal for a popular music album to be "leaked" onto the internet a couple of weeks early.  The common vibe from the music industry is angst towards the pre-release leak, but some speculate that, in reality, the record companies are usually the ones who initiate the leak in hopes of receiving feedback.

You never really hear of music artists complaining about leaks because if there is a strong demand, it proves there is a desire from consumers, and the record usually sells anyway.  However this past summer, when Kevin Cogill posted nine songs from the latest Guns N' Roses album, "Chinese Democracy,"  on his blog, they were not happy.  The FBI soon arrested the blogger who at one point faced up to three years in prison under the young Family Entertainment and Copyright Act of 2005.  After gaining support from the online music community, Cogill was able to afford his own attorney, David Kaloyanides.  This week, Kaloyanides succeeded in getting Cogill to face only a year of probation with a plea bargain that's due to take place next month.

Lead guitarist, Slash has said he hopes "he rots in jail. It's going to affect the sales of the record, and it's not fair. The Internet is what it is, and you have to deal with it accordingly, but I think if someone goes and steals something, its theft."  While he appears infuriated, Guns N Roses also released a statement saying their main intent was to find out the source of the material that reached Cogill.  The lower sentencing probably has to do with the revealing of the source. 

With all eyes on his every move, Barack Obama reminded Americans today that Veterans Day has more significance than being just a day off from work.  The holiday was established to pay homage to the veterans of World War I, but we must not forget the war veterans of the rest of wars we have fought in the last century.  More precisely, we cannot forget the soldiers who are STILL fighting in the name of the United States. 

The Associated Press reports that this morning the president elect visited Chicago's Soldier Field alongside Iraq War Veteran Tammy Duckworth.  Duckworth, who lost both of her legs in combat during the Iraq War, is the director of the Illinois Department of Veteran Affairs. She is predicted by some to be announced as a part of Obama's administration or to be filling Obama's spot in the senate after he enters the White House.

The two laid a wreath in front of the John F. Kennedy War Memorial.  They bowed their heads for a moment then saluted.  On the back of the memorial is a phrase by JFK, whom Obama is regularly compared  "Let every nation know whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, to assure the survival and the success of liberty." 

Obama said in a statement released today, "Since 9/11, a new generation of American heroes has borne a heavy load in facing down the threats of the 21st century, and their families have been asked to bear the painful absence of a loved one. These Americans are the best and bravest among us, and they are all in our thoughts and prayers."  Additionally he vowed, "As your next Commander-in-Chief, I promise to work every single day to keep that sacred trust with all who have served. May God bless our veterans, and may God bless the United States of America." 

As it is evident from the historic election three days go, the United States is progressing. Regardless of one's political preference, there is no question that Barack Obama has shattered barriers, falsified stereotypes and provided hope to so many of those who did not experience the privilege of hope before.  Momentous events for African Americans and women in history have frequently gone hand in hand.  Women are frequently stereotyped, misunderstood, and under represented.  This especially holds true for women in the legal community.  

Women are now fortunate enough to have the opportunity to go to the top law schools, to work in large firms, and even to be elected to high public service positions.  While this is positive, it doesn't eliminate the fact that women are underestimated and stereotyped. Coming in January is a new magazine designed specifically for women in the legal community that hopes to banish some of these notions.  The publication is titled "Sue:  For Women in Litigation."

"Our belief is that there is a glass ceiling.  However, it's probably time for women to stop staring at the glass ceiling and start getting off the sticky floor," says the publications creator, Chere Estrin.  I'd agree with her.  All women can glimpse the possibilities, but to step off the floor and break the glass is not a particularly easy task.  The attention is almost always focused on familiar problems such as unequal pay, consideration for women with families, etc.  Estrin says, "While these are important issues, we found that most of those articles are primarily written about major firms.  Not every woman wants to be partner in a major firm and the majority of attorneys are not in major firms. Not every woman has little children. There are many more issues."

What are these issues?  They come from the foundations.  Estrin places an emphasis on the fundamentals such as establishing independence and strength.  She believes through information, women can learn how to hone their soft and hard skills, thereby empowering themselves as a whole to defy traditional stereotypes, "We feel that abolishing stereotypes and recognizing strengths is one avenue for success and equality."  We think she's right.   Additionally women should have a channel through which they can associate with other women who they can relate to, whom they can be inspired by--they should feel as if they are part of something.  They should not feel singled out in the legal world. The legal community has been dominated by men since the establishment of the United States and "Sue" will be a valuable asset in helping women in litigation to equalize that dominance and further develop their position in the legal community.

For a glimpse at Sue Magazine visit http://www.suemagazine.com/.  The magazine which will first be released in January will be published bi-monthly.

Lawline.com is frequently in search of more female faculty and we encourage any interest.  Please send us an e-mail.

Lawline.com Co-Founder, Alan Schnurman, was recently honored by the New York City Trial Lawyers’ Association with a Lifetime Achievement Award. Alan has been practicing law in New York City for 36 years. He started and still hosts a well-known cable television show, Lawline, which gave birth to Lawline.com in 1999. In addition to being the founder, Alan Schnurman is a faculty member, having taught multiple Continuing Legal Education courses on Negotiation, Marketing and Personal Injury.

Below, you can find two videos from the ceremony. The first is an introduction of Alan by Hon. Judge Jonathan Lippman, Presiding Justice Appelate Division First Department . The second is Alan Schnurman’s acceptance speech. All of us here at Lawline.com wish to congratulate Alan on this tremendous honor.

Introduction by Hon. Judge Jonathan Lippman

Alan Schnurman Acceptance Speech

There are many tools available online to help attract attention and drive traffic to your website.  And, through the magic of the internet, many of them are free.

Lawyers and law firms alike can use these services to help them gain interest and bring potential clients, interested people in the industry, and media attention to the website.  The more traffic that you get online, the more valuable your website becomes.  Some services that are available to you are blogs, directories, forums and discussion boards, question and answer services, and online videos.

One such service that is gaining popularity is squidoo.com.  Squidoo is a website that allows anyone to create a webpage, or "lens", about anything you want.  For instance, we just created a page for Lawline.com which you can see here.

Squidoo gives you an outlet to explain your services and give detailed information to anyone who might find it interesting.  For example, a solo practitioner can create a page based on their practice.  On this page you can include a bio, certain areas of expertise, photos or videos relating to your practice, etc.  It will all link back to your website and/or blog.  It can help drive traffic to your website from people that may not find you any other way.

The key with all of these services is that using them will never hurt you.  The more you use them, and the more you create exposure for yourself online, the easier it is for people to find you.  In the online world it is important to stand out from the crowd.  Be creative and your "brand" will make its way out to a broader audience.  Then use your own website to support the other online marketing that you are doing and stay in contact with those people you intend to serve.