Tired of trudging to work Monday through Friday, 9am-5pm? Jack Borden sure isn’t. At an impressive 101-years-old, Borden still is still a happy worker. In fact, Experience Works, a nonprofit group dedicated to supporting working seniors, awarded Borden on Wednesday as the nation’s ‘Outstanding Oldest Worker.’

Almost 70 years of practicing law in Texas didn’t slow this attorney down. Other than a 45 minute rest imposed on him by his doctor’s orders, Borden works a full work day, usually arriving to his firm by 6:30am, and leaving around 4:00pm. But what prompts his motivation for practicing law? It’s not the money, Borden explains. He just feels, “as long as you are capable, you ought to use what God gave you. He left me here for a reason, and with enough of a mind to do what it is I'm supposed to be doing.” Jack Borden’s perception is indeed inspirational, especially around that 3 o’clock slump.

And what’s even more impressive is that he is not alone. In a survey composed by the Pew Research Center, 54% of workers over the age of 65 responded that they were working mainly because they want to, 17% claimed money as their reason for continuing to work, and 27% claimed both desire and money as their motivation for working. The public stress on maintaining a healthy and active senior population seems to be an important factor in this new trend of working senior citizens. While those surveyed from the ages of 16 to 64 most commonly responded that they were working to “support myself/family,” those over 65 claimed that they were working to “feel useful/productive.”

The current recession also has a significant effect. 63% of workers ages 50 to 61 say they might be forced to push back their retirement date due to the unexpected economic downfall. Though this is unfortunate, at least those who already passed their retirement age tend to report satisfaction at their jobs. Like Jack Borden, they feel strongly about remaining active in their older years.

Mixed Result in Landlord-tenant Legal Malpractice Case

Landlord hires big-time Landlord-Tenant attorneys in New York City, and expect that the attorneys are in fact bringing a series of eviction proceedings.  This case alleges that they did not, yet charged fees, and misled the client.  What is a client to do?  In this instance they sued for legal malpractice, breach of fiduciary duty, fraud, breach of contract, etc.  Justice Joan Madden of Supreme Court, New York County decided a CPLR 3211 motion to dismiss in Cayuga Capital Mgt. LLC v, Borah Goldstein.

The fraudulent inducement, fraudulent misrepresentation and negligence claims were all trimmed as duplicitive of a potential legal malpractice case. Justice Madden reasoned that they were based upon the same facts, and sought the same damages, and thus were duplicates of the potential legal malpractice.

More interesting was plaintiff's invocation of Ulico v. Wilson Elser, 56 AD1 (1st Dept, 2008),  That case has been the center of a growing number of "breach of fiduciary duty" cases, and supports a claim for such a breach.  Here, in a footnote, Justice Madden disposes of reliance upon Ulico.

A Particularly Shocking Judiciary Law 487 and Legal Malpractice Case
Were one to read each of the 150+ legal malpractice cases decisions filed each year, one would see a wide range of attorney-client problems.  Some are frivolous and some very serious.  This case, DAVID GOLDSTEIN, Plaintiffs, - against - ALLEN S. GOLD and LAW OFFICES OF ALLEN S. GOLD, Defendants;No. 06 CV 6707 (ERK)(VVP); UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK;2009 U.S. Dist. LEXIS 78822; September 1, 2009 is remarkable for the "brazen" behavior by the attorney.  Judge Korman disposes of a motion for summary judgment in this decision.

"Plaintiff further alleges that, in early 2001, defendant informed him that he filed a complaint against Mass Mutual ("2001 action"), "seeking the relief [plaintiff] had requested." (Id. P 8). This was not true - defendant never filed the 2001 action. (Id. P 9.) Nevertheless, from 2001 to 2005, in response to plaintiff's repeated inquires as to the status of the 2001 action (id. PP 10-12), defendant led plaintiff to believe that he was vigorously litigating the 2001 action against Mass Mutual (id. PP 8, 13-22).

Whose Case is It in Legal Malpractice and Bankruptcy ?
When one files a petition in bankruptcy, ownership of assets is upended.  Some if not all assets of the debtor become part of the estate, and will be used to pay creditors.  A current cause of action in legal malpractice, even if not reduced to a law suit is one such asset.  What happens if the negligence is unearthed in the bankruptcy proceedings?  Is it the property of the estate or that of the debtors; is is pre-petition or post-petition.

In IN RE: ANNE DE HERTOGH and PETER DE HERTOGH, DEBTOR;  CASE NO. 04-22006 (ASD), CHAPTER 7; UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF CONNECTICUT;2009 Bankr. LEXIS 2466;August 28, 2009 we see the following:

"The major point of contention in the present proceeding concerns whether the Malpractice Action is property of the estate or of the Debtors. Courts have taken several approaches to this question. Some, relying on Butner v. United States, 440 U.S. 48, 99 S.Ct. 914, 59 L. Ed. 2d 136 (1979), and the language of Section 541, have looked to whether, as of the petition date, a cause of action had accrued under applicable state law. See, e.g. Swift v. Seidler (In re Swift), 198 B.R. 927 (Bankr. W.D.Tex. 1996) (under Texas law, cause of action for legal malpractice causing loss of an exemption could only accrue post-petition and was therefore not property of the estate);

Applying to college can be a daunting task for high school seniors. Perhaps the most intimidating aspect of the application process is the essay. Not only is quality of the utmost importance, the quantity of essays needed to be written can be overwhelming. Many colleges require two essays and even colleges that use the common application often require supplements.

One new online resource designed to guide students through this trying task is College Essay Optimizer. By entering a list of colleges, CEO’s Essay QuickFinder generates a list of essays required for each school, along with additional information and deadlines for each particular school. The Essay RoadMap helps students reduce the number of original essays needed to be written by instantly showing students how to complete all requirements with only a few essays. As an added bonus, this service also provides sample essays. The Essay Wizard matches students with their own essay guide, who assists the student via email through the entire essay writing process. This service can turn a good essay into a good college admissions essay, and a good college admissions essay into a great one.

CEO provides valuable tools for any student applying to college. Its consolidated and simple approach to writing college admissions essays will save any student time and reduce stress, making the college application process easier and more manageable.  

To visit the site click here.

In Today's Legal Tip of the Day faculty member Henry Mazurek discusses the relavance of learning and understand the rules of evidence. Familiarization with these rules is highly advantagous when presenting one's case.

This clip is from Gerald Shargel and Henry Mazurek's "A Practical Approach to the Rules of Evidence". 

RIVERWOODS, Ill., Sept 14, 2009 /PRNewswire via COMTEX/ -- Lawline.com, a leading provider of Online Continuing Legal Education, along with CCH and Aspen Publishers, part of Wolters Kluwer Law & Business, a leading provider of research products and software solutions in key legal specialty areas, have come together with a shared vision to provide timely high quality education to professionals in a rapidly fluctuating economic environment.

"The fallout from the financial crisis has been sweeping, and we realize now just how close the system came to collapse last year," says David Schnurman, President of Lawline.com. "With President Obama addressing Wall Street and the nation today about the need for reform and strengthening oversight, we know it's more important than ever to ensure we offer the best, most timely information. It just made sense for us to team with CCH and Aspen Publishers as they are the leaders in legal and financial information."

"Teaming with Lawline.com, a leading provider of online CLE course delivery, is another example of how CCH and Aspen customers can count on us to deliver the most valuable and specific tools and services to help in their day-to-day practice and career training," said Steve Errick, Legal Education Managing Director, Wolters Kluwer Law & Business.

The courses will be available through the CCH Financial Crisis News Center web site starting this week. Topics include securities fraud, bankruptcy, SEC, lending regulations, foreclosures, among many others.

For more information on the courses visit: http://www.lawline.com/cch.

For more information on the Financial Crisis News Center visit: http://www.financialcrisisupdate.com/.

In Lawline.com's Legal Tip of the Day faculty member Mitchell Lustig explains the benefits of New York's no-fault law, and outlines a typical case.

This clip is from Mitchell Lustig's "A Practical Approach to New York's No-Fault Law".

The Phoenix Coyotes professional hockey franchise is facing a bankruptcy court auction this week.  One likely bidder is Jim Balsillie, co-CEO of Research In Motion (which makes the Blackberry).  He wants to relocate the team to Ontario, a move opposed by the NHL.  While Balsillie will likely be the high bidder, the NHL is arguing his bid should be rejected by the judge in part because of a dispute over the relocation fee Balsillie would have to pay the league. The amount of such a fee is unclear.

So, Balsillie hired a consultant who determined a reasonable relocation fee would be in the $11.2 to $12.9 million range, which includes payments to nearby teams for damage to their franchises.  The NHL hired two consultants who determined the fee would be in the $101 million to $195 million range, not including payments to nearby clubs.

Using “fair” objective criteria to justify your position can be very effective.  Here, both parties are employing experts to attempt to convince the judge of the “fairness” and “reasonableness” of their respective positions.  Experts derive their power from both their actual expertise and knowledge and their perceived knowledge.

What should you do if your counterpart has an expert or an expert opinion?  Find an expert to provide you with an opinion that supports your side and attempt to undermine the credibility of the other side’s expert.  A battle of the experts will then ensue, potentially giving both sides more credibility and a greater ability to justify their position.

How can you undermine your counterpart’s expert?  Closely examine their credentials, qualifications, independence and objectivity and find out their compensation arrangement.  A large fee may undercut their perceived independence and objectivity.

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.

One Case With Several Lessons in Legal Malpractice

Sometimes a court's decision will simply tell how the case came out.  Sometimes a decision can teach a lesson; in this case one decision teaches several lessons in Legal Malpractice.  KIRK , -against-  HEPPT,   05 Civ. 9977;UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2009 U.S. Dist. LEXIS 80989;September 1, 2009, Decided  by Judge Sweet is one such case. We will look at this case today and tomorrow.

"The Kirks, pro se, filed their complaint against Heppt, Kirk's former attorney, on November 28, 2005, alleging claims for, inter alia, breach of contract, fraudulent misrepresentation, and breach of fiduciary duty arising out of Heppt's representation of Kirk in an action brought by Kirk against his former employer. On October 2, 2003, Kirk filed suit against Schindler in New York State Supreme Court, New York County, asserting causes of action for breach of contract and defamation and seeking a declaratory judgment that Kirk had been constructively discharged by Schindler.

How Close is Privity in Legal Malpractice and Elsewhere?
Sometimes we find a stimulating discussion of a principal of legal malpractice in decisions concerning other professions.  In this case Sykes v RFD Third Ave. 1 Assoc., LLC ;2009 NY Slip Op 06387 ;Decided on September 8, 2009 ;Appellate Division, First Department ;Moskowitz, J.  we find a discussion of privity and third-party beneficiary law which informs legal malpractice issues.
 
"Plaintiffs' negligent misrepresentation claim fails to allege a "special relationship," i.e., "a relationship so close
as to approach that of privity" (Parrott v Coopers & Lybrand, 95 NY2d 479, 484 [2000]). The New York Court of Appeals takes a rather cautious approach to determining whether a relationship necessary to support a claim for negligent misrepresentation exists (see Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 424 [1989]

Failure to Communicate a Settlement Offer and Legal Malpractice
In "Boglia,  v  Greenberg, et al., ; SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT;2009 NY Slip Op 5278; 63 A.D.3d 973; 882 N.Y.S.2d 215; 2009 N.Y. App. Div. LEXIS 5183  the court writes:
 
"The client retained the attorneys to represent her in a matrimonial action. After terminating the attorneys' representation, the client settled the underlying action and received a settlement in the amount of $ 200,000. Thereafter, the client sued the attorneys alleging, inter alia, that they negligently advised her of her rights to equitable distribution of the residence, and failed to communicate an offer of settlement to her in the amount of $ 250,000. She also sought to recover

In today's Tip of the Day faculty members Josh Silber and Richard Abend explain what resources are available for acquiring evidence for medical malpractice cases. Supplemental evidence can be crucial in cases where medical reports are false, or ambiguous.

This clip is from Josh Sibler and Richard Abend's "A Practical Approach to Medical Malpractice Litigation".

Walt Disney announced on Monday its acquisition of Marvel Entertainment in a $4 billion deal.  Both sides stand to benefit.  Marvel gains access to Walt Disney’s powerful marketing and distribution system, including Disney’s theme parks and cable television channels, and significantly improves its ability to finance its movies.

Disney gains the rights to Spider-Man, the Incredible Hulk and about 5,000 other comic book characters which tend to be more popular with boys.  This will supplement Disney’s existing intellectual property, led by Hannah Montana and its many princesses, which are more focused on girls.

Both boards approved the transaction.  The negotiation began in June when both CEOs reportedly had a very cordial meeting in Marvel’s New York office.  Disney’s CFO described the acquisition as being driven by “the opportunity for synergies over time.”

This deal appears to exhibit the hallmarks of Problem-Solving Negotiation Strategies.  Problem-Solving Strategies involve mutually sharing critical information openly and liberally, downplaying leverage (while still recognizing its impact), relying on independent standards like market value and precedent, using less aggressive offer-concession moves and tactics and implementing mutually agreeable agenda and agenda-control tactics. 

When does this approach work best?  When the parties involved anticipate a strong future professional relationship, when the deal is complex and involves multiple issues and interests, when there are many creative options available and when both parties take this problem-solving approach to the negotiation - all of which appear to be the case here.

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.

In today's Tip of The Day, faculty members Lee Drexler and James Cohen discuss what stipulations the IRS has for an appraiser and how they affect charitable donations of tangible personal property.

This clip is from Lee Drexler and James Cohen's "How to Dispose of Tangible Personal Property".

With the U.S. Food and Drug Administration recently given oversight over all tobacco products, it comes to no surprise that there would soon be discourse between the government and the tobacco companies. Indeed, Reynolds American Inc.'s R.J. Reynolds Tobacco Company joined with Lorillard Tobacco Company - respectively the second and third largest tobacco companies in the U.S. - in a federal lawsuit against legislation passed in June.

This legislation, the Family Smoking Prevention and Tobacco Control Act, greatly restricts how the tobacco companies are able to advertise. In an attempt to prevent teenagers and children from the lure of smoking, the new law bans outdoor advertising within 1,000 feet of schools and playgrounds. More controversial, the law prevents tobacco companies from using colors and logos in all advertising, except those in magazines that claim at least an 85% adult customer base. Moreover, the companies would be forced to include a large, colorful, shocking graphic on their packaging that would serve to both defer customers from purchasing the product as well as to limit the amount of space the companies have for their own advertisement.

Tobacco companies claim that this will prevent them from effectively advertising to adult smokers and stress the importance of being able to convey important information about their products to adults. Reynolds and Lorillard state that the restrictions are an impediment to their Freedom of Speech. Other opponents of the legislation include the Association of National Advertisers and the American Civil Liberties Union, who claim that the new law could set a dangerous precedent against the First Amendment. Proponents of the law, however, state that the legislation was drafted carefully in order to ensure protection of all civil liberties.

The largest manufacturer of cigarettes in the U.S., Altria Group Inc.’s Philip Morris USA, supported FDA regulations and endorsed the law.

In today's Tip of The Day, faculty member Hon. Michael Dontzin discusses the differences between arbitration and mediation, and why mediation can provide a more satisfying resolution for parties in conflict.

This clip is from Hon. Michael Dontzin's "Mediation: An Effective Tool in Case Settlement"

Accountant Vicki Walker recently exposed the bizarre story behind her lawsuit against the New Zealand company she was working for. The company, ProCare Health, fired Walker after accusing her of causing disharmony in the workplace. But the reason for her dismissal is most unusual; apparently, Walker's so-called confrontational email style, which consisted of big, bold, red and capital lettering, was the root of the dismissal. While using this vexing text style, Walker would send co-workers massive emails with subjects like “How to Fill out Forms” and “Please Complete the Following Checklist.”

Annoying? Absolutely. Cause for dismissal? Not at all. Walker was victorious in her lawsuit. She walked away with compensation for $6,000 in lost wages, pertaining to the time it took for her to find a new position, as well as $11,500 for any harm caused by her dismissal. Indeed, Walker claimed that the abrupt layoff left her forced to re-mortgage her home. She claimed, "They nearly ruined my life."

In our continuing effort to recognize some of the most notable legal blogs on the web, we bring you this week’s Featured Blog.

Creator Scott H. Greenfield, Esq. states, “Blogs don't require the tedious style used in briefs and motions, and allow me to have some fun with the subjects.” And his enjoyment is definitely palpable through his informative entries that combine current events with the law. Although the blog primarily focuses on stories surrounding the legal realm, Greenfield expands them to anything that may capture his attention.

What makes this blog stand out from the rest is the style in which it’s written: “My posts generally take me 10 minutes to write, and aside from spell-check, they are posted as written, errors and all.”

This au natural posting style coupled with succinct, up-to-date information makes this blog a must-follow.

Visit the Simple Justice blog at http://blog.simplejustice.us/

In today's Tip of The Day, faculty member Marvin Pickholz explains the importance of understanding foreign anti-bribery statutes, what constitutes bribery varies in different countries and why accepting the normative procedure may involve risk.

This clip is from Marvin Pickholz's "A Primer on Corporate Compliance and Internal Investigations"