The importance of blogging is a topic that many have discussed in forums online and off. As a lawyer, blogging allows you a new way to connect with others and build your professional, if not personal, brand. It gives you a voice to express your opinions, share ideas, and showcase your expertise. And now, a new study finds that it leads to a happier, healthier lifestyle.

I recently came across this article on Kevin O’Keefe’s “Real Lawyers Have Blogs”. He referenced a study that was conducted by Scientific American that found that people who blog are happier, in general, than people who don’t. The reason, it is a means to express oneself and getting your thoughts out. It helps people work out their inner theories, ideas, and desires. It is a means to relieving stress by communicating with whoever is out there.

It is a general belief in the medical world that writing about our experiences can lead to a healthier life, and blogging has made it easier than ever to do so. It provides a forum where sharing ideas is encouraged. More than anything else, it feels good to write about things that you know and love. You will be more satisfied with your day to day lifestyle, leading to a happier you. Yet another reason to start blogging, as if there weren’t enough of them before.

Harvey Weitz has accomplished much in his years as a trial lawyer in New York. He was one of the lead attorneys in the biggest Tobacco settlement on record. He has started and run a successful practice twice over. He currently runs his own practice with his two sons, who have followed in their father’s footprints to practice law in New York City.

Recently, we were lucky enough to have Harvey visit us to talk about his career.  He discussed with us the experience of trying cases in New York City today as compared to cases in the past. “Trials, essentially, are a search for the truth,” he says with a smile on his face, “Always has been, always will be.” He speaks with fond memories of some of his first trials and the things that he has learned along the way. 

Today, he spends much of his time teaching the next generation of lawyers. “I don’t so much feel that I owe the field of law anything,” he responds when asked why he teaches, “but I enjoy passing on the knowledge that you can only get through experience.” Mr. Weitz feels that these law students and young attorneys deserve to know enough to get them where they want to be.

Memorial Day Weekend is traditionally the kickoff to the summer. This Friday we look forward to the summer months ahead. Whether you are going to be relaxing at home, barbequing at your neighbor’s house, or partying at the beach, this is a weekend to enjoy. However, with rising gas and travel prices, it looks like the traditional Memorial Day getaways are not as attractive as usual. Here at Lawline.com, we recognize an opportunity to help you out. Here are the top 5 ways to enjoy Memorial Day Weekend on a limited budget.

TOP FIVE WAYS TO ENJOY MEMORIAL DAY WEEKEND DURING A RECESSION

1. Host a BBQ and tell your guests to bring all the food. And while they are at it, they might as well pick up the alcohol. After all, you are going to be the one cooking it all. You are doing the work so the least they can do is spend all the money.

2. Watch all your CLE courses on Lawline.com with our new low rates. When funds are tight, we are here for you. Lawline.com has numerous discounts and specials available to attorneys who need to fulfill all their CLE credits this year. And with downloadable podcasts, you can take them anywhere, even your very own BBQ.

3. Drink cheaper beer. We are not trying to tell you not to party this weekend. But instead of your normal choice of alcohol, cut back a little bit. This way you can still drink the same amount at the BBQ, but you will save money at the liquor store. At the low end, may I recommend Coors Light or Keystone Light.

4. Get a ride with your Hybrid driving friend. To save money on gas, I would tell you to go out and get a Hybrid. But during a recession, there is no money in the budget for a new car much less money for gas to put in it. So what you will want to do is call up your friend who already drives a Hybrid, tell them you are going the same place that they are going, and see if you can car pool.

5. Catch up on much needed sleep. Sleep is free…

At our core, Lawline.com is still a CLE provider. Every day we attempt to produce high quality programs that offer comprehensive, up to date, and interesting information on all areas of the law. We believe strongly in the fact that lawyers deserve access to the best Continuing Legal Education they can get at affordable prices, in an online format that offers ease and comfort. Recently, we have added a number of courses to our growing catalog. Here is a preview of some of the newest courses out there:

1. Overview of Patents and Trade Secrets - In this course, Amy Goldsmith, Esq. discusses the importance of patents in companies small and large.  She goes over the basics of patent law, including what can be patented and how the process works.  She also covers trade secrets and how they apply in the United States and overseas.

2. Social Networking and Advanced E-Commerce Issues - In this course, Kaiser Wahab and Olivera Medenica discuss everything you need to know about social networking websites.  With the popularity of sites like Facebook and MySpace, it’s important for lawyers to know how to advise clients using, building, and working with social networking websites.  The two presenters use their experience and knowledge of the topic to share with you the technological issues as well as the current and future legal landscape.

3. A Lawyer’s Guide to Litigation and Crisis Communications - In this course, Richard Levick, Esq. discusses the crucial factors lawyers and law firms should know when dealing with litigation and crisis communications.  As the CEO of Levick Strategic Communications, Richard has extensive experience dealing with these types of issues at the highest level.  He shares some of his own experiences, including tips to help improve your communications and common mistakes to avoid.

4. Zoning Procedure and Regulation - In this course, Carole Slater and Stuart Beckerman explore the in's and out's of zoning procedure in New York City.  They discuss everything from the main players to the governing law and the Zoning Resolution.  This is a great primer for attorneys who would like a working knowledge of the zoning process in New York City.

5. An Overview of Private Adoption Law - In this course, Aaron Britvan gives an excellent primer on private adoption law.  He lays out the basic method of the adoption process from who may adopt to the final order of adoption issued by the court.  Mr. Britvan's personal experience sheds light on the fulfilling area of adoption law and the joys and hardships that go along with it.

It is not enough to talk about the state of legal education in the United States. As a company that is based on the philosophy that learning is a never-ending process, and informative, easy to get continuing education, we also see the need for education across the globe. In this day in age, where entire cultures, societies, and economies intersect to form a world without boundaries, it is important for education to expand to keep up with growth.

I came across this article on the first Law Development Center which opened in Rwanda earlier this month. The National Institute of Legal Practice and Development is a strong step in the right direction for a country rebuilding itself from the ground up. The institute will be the foundation of legal development and education in the country. It will offer a nine-month course in law and it will award a Post Graduate Diploma in Legal Practice and Continuing Legal Education.

As other countries begin to build their legal system and model it after the US and other established systems in the world, it is vital to start with a proper legal education center. Prepare for the future by educating the youth, and continuing to educate those who become involved with the law as they get older. That is the only way for a society to undergo this type of growth and change.

New clients are out there waiting for you to come find them.  Sometimes, they may even find you, even better. But why should they choose you over another lawyer who has a similar track record, just as much experience, and practices the same type of law? Well, a lot of that can come from that first impression that you make when someone comes in to meet you. So how can you improve those first impressions? Well, since its Friday, I wanted to give you five ways to boost your first impression.

TOP 5 WAYS TO IMPROVE YOUR FIRST IMPRESSION ON POTENTIAL CLIENTS

1. Dress for the Job. They tell you this from day one in college; you have to dress for the job that you want. As a lawyer, the job that you want is just the ability to represent this potential new client that you are talking to. You want to look your very best every single time you meet with a client. The legal profession is one of professionalism and tradition, and people have certain expectations when they come into a law office. Live up to those expectations.

2. Communicate Solutions. While talking to a potential client, let them know that you understand their problems by communicating to them the solutions. Too many people will spend too much time listening and repeating the same problems back. This will not make you stand out from other lawyers. It will not bring about trust, it will not make you memorable, and you most likely will not get the business. Tell them how you would fight for them, and be as specific as possible.

3. Define Differences. You may hear a lot about Unique Value Propositions. Basically it is a short way to communicate the value you offer as compared to others. Well the main point of a value proposition is that you stand out from others that may be just like you. Make sure these clients know not only everything that you offer, but exactly what you can offer that others cannot.

4. Confidence Calms. Many times, a client will come in under some type of stress, hence the reason they are seeking out a lawyer. They may be scared, hurt, or worried. What they need more than anything else is your confidence. It has a calming effect on them, and if you can get them to feel better about themselves and their situation, you will most likely get their business. Be strong minded, speak up, make eye contact, and let them know that you understand exactly what they are saying.

5. Office Set Up. Going back to number 1, people walk into a law office expecting certain things. Your office should meet or exceed those expectations no matter what. It should always be clean, organized, and comfortable. Too many lawyers think that their office is for them. Obviously, your office is for your clients.  You want them to walk in and feel completely at ease. If they feel uncomfortable, and their first instinct is to get out of there as soon as possible, you are not going to land them as a client, bottom line.

Now we have only scraped the surface of first impressions, but this is a good overview to keep in mind. Follow these tips and you will get a higher percentage of the business that comes your way. Keep Practicing -- Happy Friday!

Frederick Rehberger, appellant, v Garguilo & Orzechowski, LLP, et al., respondents. (Index No. 30120/05)

2007-05158

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

2008 NY Slip Op 3187
April 8, 2008, Decided

 

“In an action to recover damages for legal malpractice, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Kerins, J.), dated May 10, 2007, as granted the motion of the defendants Garguilo & Orzechowski, LLP, and Stanley E. Orzechowski to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(5) as time-barred and that branch of the separate motion of the defendant Jerry Garguilo which was to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211(a)(5) as time-barred.

 

In support of their respective motions pursuant to CPLR 3211(a)(5), each of the defendants demonstrated, prima facie, that the time in which to sue had expired and that the complaint was time-barred as against them (see McCoy v Feinman, 99 NY2d 295, 785 N.E.2d 714, 755 N.Y.S.2d 693; Sabadie v Burke, 47 AD3d 913, 849 N.Y.S.2d 440; Matter of Schwartz, 44 AD3d 779, 843 N.Y.S.2d 403; Savarese v Shatz, 273 AD2d 219, 708 N.Y.S.2d 642; CPLR 214[6]). However, in opposition, the plaintiff raised a triable issue of fact as to whether the statute of limitations was tolled by the continuous representation doctrine (see Town of Wallkill v Rosenstein, 40 AD3d 972, 837 N.Y.S.2d 212; Tropp v Lumer, 23 AD3d 550, 806 N.Y.S.2d 599; Savarese v Shatz, 273 AD2d 219, 708 N.Y.S.2d 642). Thus, the complaint should not have been dismissed as time-barred.”

 

JOSEPH G. HUGAR AND LKC, LLC, PLAINTIFFS-APPELLANTS, v DAMON & MOREY LLP, CHRISTOPHER T. GREENE, ESQ., ANTHONY L. EUGENI, ESQ., AND ROBERT J. PORTIN, ESQ., DEFENDANTS-RESPONDENTS.

596 CA 07-02311

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT

2008 NY Slip Op 4167; 2008
May 2, 2008, Decided
May 2, 2008, Entered

 

When are attorneys treated the same as their clients? Here is an example of attorneys getting the benefit of the client’s release.

 

“Memorandum: Plaintiffs commenced this action seeking damages for breach of fiduciary duty and legal malpractice arising out of defendants' representation of plaintiffs and two other individuals and their respective limited liability companies in the formation of Aurora Healthcare LLC (Aurora). When Aurora terminated the employment of Joseph G. Hugar (plaintiff), defendants continued to represent Aurora and its remaining principals in negotiations with plaintiff to resolve his claims against Aurora and its two remaining principals and their respective limited liability companies. Plaintiff and his own limited liability company, plaintiff LKC, LLC, retained new counsel during the negotiations, and their claims were eventually resolved. Plaintiff then, on behalf of both plaintiffs, executed a settlement agreement that included a general release (Settlement Agreement). Defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (1), (5) and (7), contending that the action is barred by the covenants and general release in the Settlement Agreement. We conclude that Supreme Court properly granted the motion.

We agree with plaintiffs that the terms of the general release do not apply to defendants because they were not "Grantees and their respective successors and assigns," and those were the only parties encompassed by the general release. We conclude, however, that the complaint was properly dismissed because the action is barred by the covenant not to sue in the Settlement Agreement. Pursuant to that covenant, plaintiffs agreed not to institute any action at law or equity or to assert any claim against various entities relating to any "Company Matters." The term "various entities" includes "Company Affiliates," and the Settlement Agreement defines Company Affiliates as, inter alia, the parties to the agreement, as well as "all agents and employees thereof."

How many of us could benefit from knowing a lot more about mortgages than we currently do? It seems like the credit crisis and the problems in the housing market have made us all more aware of how little we know, or think we know, about mortgages. Well there is good news; Dave Muti is here to help.

Dave Muti is a former real estate attorney, with 17 years of experience in the real estate industry. He is currently a mortgage planner, and has a new book out called Mortgages: What You Need to Know, Strategies to Take Control of Your Financial Future. He wrote the book as a culmination of everything he has seen and learned over nearly the past two decades, to better inform people of the options that are out there, and to help people avoid the most common mistakes that will land you in deep financial trouble.

Top 3 Mistakes People Make:

1. Buying a house beyond their means. Too many people follow the “keeping up with the Joneses” mentality. They want the biggest and the best that they can afford. But the truth is, people think that they can afford a lot more than they’ve got. They don’t plan for the future and they wind up living in a house that they can’t pay for.

2. Waiting to the last minute to apply for a mortgage. This leaves people with no time to shop around or compare financing plans. They are usually forced into a bad package that is not right for them and leaves them struggling to make the payments down the road. In addition, credit issues often pop up that could have been corrected had they met with a mortgage planner months before they began looking for a home. This mistake can cost thousands over the life of the mortgage.

3. Getting a 30-year fixed rate mortgage because it’s the most common. Everyone pitches a 30-year fixed rate mortgage. However, it is not the right mortgage type for the majority of people buying a home. It is up to people to do the homework, ask themselves the seven key questions and learn what type of mortgage is really right for them.

This book is a good reference for people of all walks of life. It is a detailed introduction for someone in just starting out in real estate. It is a good refresher, with clearer explanations, for those already involved in real estate. And it is an excellent resource for the average person who has a mortgage, or is looking to get a mortgage as well as the financial advisor looking to learn a few more pointers.

As the credit crisis continues in the US, financing is going to be difficult to get for many people who used to be able to get a mortgage without a lot of problems. So it is more important than ever to know what to look for, and how to shop around for the best mortgage for your individual situation.

Over the last year or so, much has been written – both in the legal press and in the mainstream media – about the predicted demise of the dreaded billable hour in our profession. The cover of the August 2007 ABA Journal featured an article by lawyer and best-selling author Scott Turow entitled "The Billable Hour Must Die" in which he argued that billing clients by the hour could actually be unethical.   In January 2008, the on-line magazine Slate published an article the title of which labeled the billable hour as a "scourge" upon the profession and posed the lawyer’s age-old dilemma – spend two hours at your daughter’s soccer game or bill the two hours instead?

 

The ABA itself sounded the alarm about billable hours in 2002 when it convened a special commission to study the practice and to recommend alternatives. Just last month Jeff Bleich, the President of the California Bar Association, publicly said that it was “obvious” that the practice of billing clients by the hour “is corrupting to our profession . . .” And, as Bleich noted, young lawyers in particular feel “degraded by the experience” of having to bill by the hour. 

Clients, too, hate the billable hour. Based on recent comments attributed to Susan Hackett, General Counsel of the Association of Corporate Counsel (ACC) (the in-house bar), her corporate clients are angry about their legal bills and they are not going to take it anymore. What are corporate clients so mad about?

So if we all agree that we don’t like billing by the hour, how is this going to change?

 

The conventional wisdom has been that large corporate clients will demand alternatives to billing by the hour. Indeed, the Slate article on the billable hour is subtitled “Could Law Firm Clients Finally Kill It Off?” Mark Beese, the marketing head of Holland & Hart, a 350-lawyer firm in the Mountain West, reported that at a recent Legal Marketing Association conference, the ACC announced that it established a committee to come up with a list of best practices for corporate law departments to contain outside counsel costs.

Is this the beginning of the end for the billable hour? Will this ACC committee start the corporate client revolution toward alternative fee arrangements?

Perhaps.  But not likely, according to Ron Baker of the VeraSage Institute. Writing about the same ACC presentation at the same conference, Baker summarizes it this way:

                        Ho hum. I’ve heard this all before, ad nauseaum

Allow me to do something I rarely do, make a prediction: This ACC committee will amount to nothing. Not because its goals aren’t correct—they are. Not because law firms need a push into alternative pricing paradigms—they do.

But because the impetus for change must come from law firms, not their clients. I know this sounds counterintuitive, but I firmly believe it’s true . . .

While I was initially skeptical of Baker’s argument, I now think he’s right. Think of it: if one or two Wall Street mega-firms were bold enough to completely stop billing their clients by the hour and instead used alternative fee mechanisms, what would be the likely result? Happier clients and happier lawyers in the firm. That combination should quickly lead to higher profits – a true “win-win” result.

So while some Fortune 500 companies like Cisco and DuPont are demanding their outside counsel adopt alternatives to billing by the hour, and while a growing wave of small to medium sized firms in cities such as Boston, Columbus, Chicago and Denver are moving entirely to alternative fee arrangements with their clients, it’s not enough. The practice of billing clients by the hour will end only after a Wall Street firm or two demonstrates to the rest of our profession that there is a better way that is actually more profitable.

As California Bar President Bleich correctly notes, in the current billable hour law firm model, the only way to make more money is to “work longer hours, increase the number of lawyers, or raise rates.” In the long term that approach is not sustainable. Eventually, a new revenue model will have to be developed. 

So some day, a visionary Wall Street lawyer will convince his or her partners to take the leap into the bold new world without billable hours. Which lawyer and which Wall Street firm will lead the Revolution? Right now, that remains to be seen. But that lawyer and that firm will emerge some day. And our profession will be the better for it.

D. Michael Grodhaus is an attorney at Waite Bailey Bayless & Chelsey in Columbus, Ohio.  His blog on alternative fee setting can be viewed at http://thealternativefeelawyer.blogspot.com/

Do Your Homework. In the increasingly overcrowded E-Discovery community, that is one piece of advice that Brian Dykstra and his partner Keith Jones offer Law Firms looking to hire someone for computer forensics help. There are many firms out there all vying after the same business, and experience really plays a factor in who can get the job done accurately and on time. Brian Dykstra and Keith Jones are no strangers to the E-Discovery/Computer Forensics world; in fact, their firm is a leader in the growing industry. Jones Dykstra & Associates is a consulting firm specializing in E-Discovery, Litigation Support, Expert Testimony, Incident Response, Computer Forensics and Computer Security Training Services.

The need for consulting services in these areas is growing, and the importance of companies like Jones Dykstra & Associates has never been clearer. Law firms need to be aware of the options that are out there, and be more equipped to choose a company when they have this type of computer project on their hands. Brian and Keith offer three important pieces of advice when selecting a company to help with E-discovery or Computer Forensics.

1. Get the answers to your questions. The right firms will be able to give you straight answers to your questions about timing, pricing, software, and planning. Those firms that may end up ripping you off will be the ones that avoid your questions and do not take the time to explain the process to you.

2. Select a software-independent vendor. Do not select a vendor that is attached to a limited spread of software packages because in the long run the software is not nearly as important as the company using it. Many companies will use a variety of software depending on the nature of the project. Experience of the consultant is much more important than the type of software a company will use. 

3. Once you hire a company, bring them in up front. Too many times, a law firm will budget and plan an E-discovery project on their own, without consulting the E-discovery firm. This can lead to gross strategic errors that cannot be changed at a later point. Bringing in the consultant up front can save a lot of unnecessary time and money.

In addition to the experience they bring to the table, Jones Dykstra and Associates has developed a unique pricing strategy that makes budgeting for their clients much easier. Instead of billing per hour or per gigabyte used like most similar companies, they will work with a law firm up front to figure out a fixed cost for the entire project. They find that based on the discussions and details learned in the early meetings, they can get an accurate idea of their cost projections. This helps their clients plan better, and there are fewer surprises when clients get the bills. This has helped them earn a lot of repeatable clients as law firms greatly appreciate the ease and predictability that this practice offers.

More and more, law firms are finding the need to hire outside services to provide computer help. And as competition has grown, so has the need for information. Lawyers and law firms need to know what is out there and spend the time and the money to get the jobs done right.

You can find more information on Jones Dykstra & Associates at http://www.jonesdykstra.com.

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.

3:05cv1712(WWE)

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.

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:

Tennessee CLE Bundles

Tennessee CLE Courses