At Lawline we are one big family- customers, faculty, company and all. Here is one new faculty member's recollection on why he first chose Lawline.com for his CLE and why he then chose to present CLE with Lawline.com as well.

Arbitration Clauses in Retainers and Legal Malpractice

A trend in legal malpractice retainer agreements, especially in the Intellectual Property field is the all encompassing Arbitration clause.  Beyond the statutory required arbitration in attorney fee disputes below a certain dollar figure, these arbitration clauses require arbitration of all disputes, whether in tort, contract or other claims.

Arbitration has long been said to be quick and economic, but recent experience has led to a different take.  In a $1 million dollar legal malpractice case, the fees to the arbitration company and to the arbitrator may approach $ 75-$100,000.  Of course to bring the same action in Supreme Court costs about $ 385.

Matter of Brady v Williams Capital Group, L.P. ;2010 NY Slip Op 02434 ;Decided on March 25, 2010 ;Court of Appeals ;Jones, J. investigates the situation in which a litigant can't afford arbitration, and the consequences.  Without deciding the case [it requires further fact finding in Supreme Court] the Court of Appeals reviewed Federal law in pursuit of an answer.

How Widespread is Legal Malpractice Litigation?

Legal malpractice sometimes seems to be the language franca in law news. It can show up in any setting. Here is a most unusual story from Law.com [link unavailable]:

"A legal malpractice lawsuit against Baker, Donelson, Bearman Caldwell & Berkowitz stemming from a case involving a 6-ton marble sculpture of Jesus Christ's face may proceed to trial.

The Court of Appeals of Tennessee ruled Aug. 15 that the lower court erred when it threw out two of the former client's theories for malpractice and granted a final judgment to the plaintiff on a third theory. The decision remanded the case back to the lower court for trial.

The former client is Christus Gardens, a tourist attraction and gift shop in Gatlinburg, Tenn. It sued Baker Donelson for its alleged failure to file an appeal on time in a copyright infringement lawsuit that Christus Gardens was defending.

Narrow Retainer Leads to Dismissal in Legal Malpractice

Sometimes its obvious what responsibilities the attorney will take on in a new representation.  If it's a motor vehicle accident, then the attorney is hired to prosecute the personal injury action, up to and including trial.  Here, in  Hallman v Kantor ;2010 NY Slip Op 03280 ;Decided on April 20, 2010 ;Appellate Division, Second Department  the attorneys took on a more limited role.
 
From the decision:  "The defendants submitted a retainer agreement reflecting that the plaintiff "understood, accepted and agreed" that the "scope of" their "engagement" was "to represent" her as a co-executor of her deceased father's estate. This documentary evidence conclusively established a defense to the plaintiff's claims of malpractice. The plaintiff alleged that she was the subject of a pending lawsuit, in effect, to recover sums of money due under certain notes she executed before her father died, and that the defendants committed legal malpractice by, inter alia, failing to speak with her "about the circumstances surrounding [her] signing of [those] notes," and failing to "question[ ]" their "validity." However, the documentary evidence demonstrated that the plaintiff's individual liability on the notes was a matter outside of the scope of the defendants' representation of the plaintiff in her capacity as co-executor of the estate (see CPLR 3211[a][1]; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435; DeNatale v Santangelo, 65 AD3d 1006, 1007; Turner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d 849, 850). [*2]" 

The Best Accountants and Attorneys for Growing Businesses is an awards program being presented by The New York Enterprise Report.  This special awards program will recognize the New York area's top business advisors.
 
Accountants and attorneys are consistently considered among the most impactful advisors for business owners. This unique multimedia program will recognize those accountants and attorneys that have gone "above and beyond" in helping their clients succeed. It's the only program in the New York tri-state area that recognizes these advisors in front of their clients. 
 
This one-of-a-kind multimedia program will culminate in an event in June where these top accountants and attorneys will be revealed. The advisors will also be recognized in a special section within the August issue of The New York Enterprise Report as well as on the web at www.nyreport.com.

Attorney Categories Include:

• General Category: Attorney of the Year, Rising Star of the Year, Lifetime Achievement
• Practice Area: Bankruptcy & Reorganization, Commercial Litigation, Employment Law, General Corporate Law, Financing, Intellectual Property, Real Estate
• Industry Focus: Entertainment/Media, Environmental/Energy, Healthcare/Life Science, Professional Services, Technology

Accountant Categories Include:

• General Category: Attorney of the Year, Rising Star of the Year, Lifetime Achievement. 
• Practice Area: Bankruptcy & Reorganization, Commercial Litigation, Employment Law, General Corporate Law, Financing, Intellectual Property, Real Estate. 
• Industry Focus: Entertainment/Media, Environmental/Energy, Healthcare/Life Science, Professional Services, Technology

For more information on the awards program and to fill out your nomination please visit www.nyreport.com/bestadvisors or call 516-997-1950 for assistance with this awards program. 

In this Lawline Exclusive CLE preview, attorney Patrick Oguinn and e-discovery consultants Keith Jones and Jason Briody discuss their work with e-discovery. They further reveal how their passion for technology influences the ever changing world of e-discovery. Finally, they disclose some of the mistakes that attorneys can make during e-discovery. 

Last year, Lawline.com was a finalist for the New York Enterprise Report's the Customer Service award for its reputation on treating customers with respect, dignity, and care. The company now has another achievement to showcase its philosophy on the practice of serving others: one of New York State's best companies to work for.

On Wednesday, April 21, the Best Companies to Work for in New York program ranked Lawline.com the eleventh top small/medium sized employer in the state. President David Schnurman, who created the online Continuing Legal Education company in 1999, accepted the award in Albany, New York, on behalf of his company.

“Our greatest assets are our employees," Mr. Schnurman states. "We strive to provide them with what they need to excel, and in return we believe that this maximizes their potential."

The award consisted of a two part assessment: an employer survey regarding benefits, policies, practices, and other general data (25 percent of the total assessment), and a confidential employee survey evaluating the employees' workplace experience (75 percent of the total assessment).

Mr. Schnurman and Lawline.com add this accomplishment to their growing list of recognitions, namely its recognition in customer services and features in such publications as Crain's, Entrepreneur, Forbes, Inc. and The Wall Street Journal.

Lawline.com is happy to announce that at each month we will award a Customers of the Month! The winner will be announced the first week of every month in our eNewsletter and receive a free one-year extension of Unlimited CLE. The winner will also be provided the opportunity to be interviewed and featured right here on The Legal Beat!

The competition is for Lawline.com Unlimited CLE subscribers only. Not an Unlimited CLE Subscriber? Click here...

With more and more law firms understanding the value of public relations and incorporating it to their business development arsenal, it is essential that paralegals, officer managers and attorneys doing their own media relations and wearing multiple hats be familiar with the very basic tools of communicating with the press.

There are a vast array of tools that law firms can use when communicating with the press. The story/pitch must be newsworthy for the reporter to write about it. Below are tools you can use to garner media interest:

1. Fact Sheets: these provide reporters with the data they need to support their story.
2. Press Release/News Release: these should announce something new, a piece of legislation, something that is going to have an impact on the community. Always ask yourself "tell me, something I don't know." Keep it short.
3. Media Advisories: Typically they can be used to alert reporters what legal experts are available to talk to the press on specific issues.
4. Letters to the Editor: Even though your firm may not incorporate a public relations plan, there is still a way to get your message and your name published in that newspaper. How many times have you read a newspaper article about a topic that is your area of interest and legal expertise —and felt disheartened and disappointed that you were not the person who was being quoted?

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

In this Exclusive Lawline CLE preview Entrepreneur, Sergio A. Fernández de Córdova, and attorney Joel Wagman, discuss the complex relationship between and entrepreneur and an attorney. When it comes to deal making what are the priorities and who is in charge of the risk at hand?

Tax season represents the busiest time of the year for many professionals. Needless to say, it is easy to become confused, lost, or overwhelmed by the amount of work and little room for error.

Lawline.com is here to help. Check out our full listing of tax related courses here.

Also, get advice from some of Lawline.com's top tax attorneys:

Dr. Bart A. Basi (featured in picture) is a specialist in the areas of business succession, business valuation, mergers and acquisitions, retirement and estate planning, strategic planning, and tax aspects of business decisions for closely held and family businesses.  He speaks nationwide, writes, and researches on all of these areas.   He has written five loose-leaf bound books, over 300 articles, and has worked with hundreds of businesses and associations. Learn more...

Sheila Gowan joined Diamond McCarthy as a partner in the New York Office in April 2008. She is a trial and appellate attorney specializing in complex litigation and internal investigations. She has tried a constitutional case, and employment, tort, tax and environmental cases. Learn more...

Susan Hayden received her Bachelor of Business Administration from the University of Wisconsin-Madison and her law degree from Hamline University School of Law in St. Paul, Minnesota. Since 1998, she has guided investors along with their legal and tax advisers through the exchange process. Learn More...

Jany Sabins is an attorney admitted to the New Jersey and New York State Bars. She completed degrees at The Ohio State University, Fordham University School of Law, and New York University School of Law, and has hands-on experience from her association with both New York and New Jersey law firms. Ms. Sabins specializes in tax, estate, and business planning and controversy for individuals and businesses, along with estate administration and litigation. Learn more...

Bruce Steiner has over 30 years of experience in the areas of taxation, estate planning, business succession planning and estate and trust administration. He is a frequent lecturer at continuing education programs for bar associations, CPAs and other professionals. Learn more...

The value of a dollar: when the economy is running high, its full worth may become overlooked. In times of scarcity, such as in our current economic climate, each expenditure and each penny becomes magnified, and individuals may begin to more heavily scrutinize investments.

In the case of law school, perhaps at one point it was a no-brainer investment for earning a positive return. This may not be the case today.

This past week, a group of lawyers and legal educators met in New York for a two-day conference entitled “Future Ed: New Business Models for U.S. and Global Legal Education” sponsored by New York Law School and Harvard Law School. The attendees expanded upon the findings of the Carnegie Foundation’s 2007 report on legal education, which detailed the lack of adequate preparation law schools in general provide for students.

Law is a constantly changing profession. Just as fast as the practice changes, so must the curriculum. The economic downturn, for example, has dramatically slowed the acceptance of on-the-job training, and thus, hiring in general. To be worthy of a firm’s expenditure and costs, a new hire has to be ready to contribute and provide opportunity to generate revenue for the firm. A two-year period of training is not profitable for any firm, and this is exactly the type of education law schools need to more thoroughly prepare students for.

The meeting was intended for more than diagnostics, however. New York Law School dean Richard Matasar believes the key to having a successful future for law school and having success from this conference is based upon producing concrete, implementable ideas, according to Law.com.

If the labors of this conference and forthcoming projects can produce legal associates who are ready to make an impact in a business setting, it will be easier for those with the means to invest in law school and rest assured their returns will outweigh the costs and sacrifices.

Andrew Bluestone discusses when he first knew that he wanted to be an attorney. He also reveals his surefire motto for success for attorneys. I'll give you a hint.... it involves some very early mornings. To see Andrew Bluestone's exclusive Lawline CLE course go to Lawline.com.

Client from outside New York is sued in Federal Court in New York.  Client hires a NY attorney, and then the case shifts focus to a London Arbitration.  When does the billing in NY end, when does the London case take over, and what happens when there is a billing dispute later?  Justice Edmead's decision in Eaton & Van Winkle LLP v. Midway Oil Holdings Ltd. sets forth a well written explanation of jurisdiction and account stated.

How much must take place in NY for the out of state defendant to be jurisdictionally available in NY?  The short answer is:  enough to satisfy due process.  The longer answer is:  The burden of proving jurisdiction is on the party asserting it.  Long arm jurisdiction is found at CPLR 302(a)(1), and allows for jurisdiction over any non-domiciliary who "transacts any business" within the State, provided that the cause of action arises out of that transaction of business.  A single act will suffice, so long as there is a substantial relationship between that transaction and the injury. The test is the totality of circumstances when determining the existence of purposeful activity. Such acts may include contract negotiations between the parties, meetings, letters or phone calls. 
 

CNNMoney.com recently reported that Jones Soda terminated an exclusivity agreement with potential purchaser, Reed’s, “to explore an unsolicited proposal sent by a second suitor.”  Jones Soda previously announced plans to be acquired by Reed’s for just under $10 million.  Jones Soda also agreed to reimburse Reed’s for $75,000 in expenses incurred due to its termination of the exclusivity agreement.

 Why would Jones Soda do this?  From a negotiation perspective, when a seller can find at least two bidders, the seller’s leverage is usually strengthened because now they have a good alternative (or Plan B) to each of the bidders.  Finding multiple potential buyers allows a seller to play each buyer against the others to obtain the best possible deal.

 Here, Jones Soda’s negotiators believed the value of terminating the exclusivity agreement exceeds its $75,000 cost.  While time will tell if this move pays off, it is almost always a good idea to take the time to find more than one potential buyer, or, as is the case here, to not look a gift horse in the mouth if a new suitor unexpectedly appears.
________________________________________________________________

 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 any internship, employment, or transaction in a capitalist economy, the ideal situation is one in which both parties are be mutually benefited.

However, the scarcity of employment brought upon by our current economy has caused a shift in leverage. Labor cuts and reduced employment opportunities have led to greater power for employers, and as a result many students and others seek any available opportunities in an increasing competitive environment. This has led to a situation in which employers have the upperhand to take advantage of students willing to provide free labor in hopes of greater returns in the future.

However, many of these businesses do not realize they are walking across a thin line with the law. The Labor Department, according to the New York Times, has begun initiatives to investigate firms failing to properly compensate interns and further educate firms on the laws regarding internships. The Department’s Labor Wage and Hour Division (WHD) developed six federal legal criteria that must be satisfied if an internship is unpaid:

1. The training, even though it includes actual operation of the facilities of the employer, is similar to what would be given in a vocational school or academic educational instruction;

2. The training is for the benefit of the trainees;

3. The trainees do not displace regular employees, but work under their close observation;

4. The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion the employer’s operations may actually be impeded;

5. The trainees are not necessarily entitled to a job at the conclusion of the training period; and

6. The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training. 

According to the Employment and Training Administration Advisory System of the U.S. Department of Labor: “If all of the factors listed above are met, then the worker is a “trainee”, an employment relationship does not exist under the FLSA, and the FLSA’s minimum wage and overtime provisions do not apply to the worker.”

Although there is no exact count of the number, there is little doubt among federal regulators that the number of unpaid and underpaid internships is on the rise. Times may be tight, and companies may have to reduce their labor forces within the company, but, unless in accordance with the six factors outlined, this cannot be accounted for through the use of free labor – internship or not.

40 years as a personal injury attorney, Robert Conason, what's your secret? What sustains his passion for his practice? Two words- responsibility and concern. Conason also puts a new positive twist on the phrases "sitting on your rear end" and "compulsive neurosis."

Contact: Christy Burke
Burke & Company LLC
Phone: (917) 623-5096
E-mail: cburke@burke-company.com

FOR IMMEDIATE RELEASE

CLIO CLOUD-BASED LAW PRACTICE MANAGEMENT INTRODUCES CLIOPAD

A magical and…well…not so revolutionary device is perfect companion to Clio!

Vancouver, BC – April 1, 2010 – Vancouver-based Themis Solutions Inc., provider of web-based legal practice management offering Clio (www.goclio.com), today announced the introduction of its newest product, the ClioPad (www.cliopad.com). 

ClioPad’s high-quality paper stock, made from 100% recycled and biodegradable paper, is college ruled and spiral bound. At a mere 3 ounces and a sleek 0.25 inches thin, the ClioPad is easy to carry and use anywhere.  Featuring an infinite battery life, you won’t be hunting around for an outlet to plug into anytime soon.  ClioPad gives you the ability to jot down ideas whenever and wherever they occur, whether there’s an internet connection or not!  It is the perfect offline companion to Clio, the best way to manage your law practice online.

Legal technology and eDiscovery expert Brett Burney of Burney Consultants was amazed at the innovativeness of the ClioPad.  He reveled, “The ClioPad helped me re-discover the pencil. Who knew you could create text without typing?  The ClioPad is so intuitive and user-friendly that even my 3-year old picked it right up ... although she preferred to use a crayon.  Surfing the Internet is still a little primitive - I tried visiting www.cliopad.com but I had to draw my own 404 error. Also, the ClioPad is so versatile when compared to other products - just try making a paper airplane out of your laptop!”

Clio President and Co-Founder Jack Newton said, “We think the ClioPad is the ultimate offline companion to Clio. It will work anywhere, with or without internet, with or without power. With its built-in handwriting compatibility, we think we’re really on to something.”

Features of ClioPad:

-          Offline functionality

-          Infinite battery life

-          Biodegradable, PVC-free

-          Handwriting-enabled

-          Copy notes from one ClioPad to another

For more information about ClioPad visit www.cliopad.com.  Happy April 1^st!

When a tort is committed outside of New York and a non-resident sues within the State of New York, courts apply the borrowing statute, especially with regard to the statute of limitations.  As an example, Kat House Prods., LLC v Paul, Hastings, Janofsky & Walker, LLP ; 2010 NY Slip Op 02489 ; Decided on March 25, 2010 ; Appellate Division, First Department  reminds us that although the NY statute of limitations is 3 years, the California statute of limitations for legal malpractice is only 1 year.  In this case, the Court applied the California time limits.

"When a nonresident sues in New York's courts on a cause of action accruing outside the state, our "borrowing statute" (CPLR 202) requires that the cause of action be timely under the limitation periods of both New York and the jurisdiction where the claim arose (see Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 528 [1999]). Generally, a tort action accrues "at the time and in the place of the injury," and "[w]hen an alleged injury is purely economic, the place of injury usually is where the plaintiff resides and sustains the economic impact of the loss" (id. at 529).

Applying these principles, it is clear that plaintiffs' legal malpractice claim accrued in California, where their residences and principal place of business were located and the alleged economic injury was sustained, at the latest, in March 2006. Under that state's applicable one-year statute of limitations (Cal Civ Proc Code § 340.6), this action, commenced in November 2007, was time-barred. "