<img src="//bat.bing.com/action/0?ti=5189112&amp;Ver=2" height="0" width="0" style="display:none; visibility: hidden;">

    The Lawletter Blog

    Lee P. Dunham

    Recent Posts

    CONTRACTS: Investigating and Defending Against Student Loan Claims

    Posted by Lee P. Dunham on Thu, Dec 27, 2018 @ 09:12 AM

    The Lawletter Vol 43 No 8

    Lee Dunham—Senior Attorney, National Legal Research Group

     

                Student debt is the second-largest source of U.S. household debt, at nearly $1.4 trillion. Federal Reserve Bank of New York, Quarterly Report on Household Debt and Credit (accessed on Nov. 10, 2018). It is projected that nearly 40% of student loan borrowers will default by 2023. Judith Scott-Clayton, The Looming Student Loan Default Crisis is Worse than we Thought (accessed on Nov. 10, 2018). Many attorneys have seen increased requests for student loan advice.

                Because students are often young and legally unsophisticated at the time they borrow, many understand little about their contracts, or have lost—or never obtained—copies of the essential documents. The first step in such circumstances is to have the client contact the servicer to request copies of the promissory note and related documents, payment history, name and address of the current lender, and documentation of any transfers.

    Read More

    Topics: contracts, student debt, default on loan, obtaining essential documents, Lee Dunham

    BANKRUPTCY: Effect of Prior Bankruptcies on Civil Litigation

    Posted by Lee P. Dunham on Fri, Sep 28, 2018 @ 10:09 AM

    The Lawletter Vol 43 No 4

    Lee Dunham, Senior Attorney, National Legal Research Group

                Bankruptcy Code § 521(1) places an affirmative duty upon a debtor to disclose all assets to the bankruptcy court. A known cause of action that has accrued is an asset that must be scheduled under Bankruptcy Code § 521(1). See Eubanks v. CBSK Fin. Group, Inc., 385 F.3d 894, 897 (6th Cir. 2004); Cusano v. Klein, 264 F.3d 936, 945 (9th Cir. 2001). An unliquidated cause of action need not actually be filed prior to the commencement of the bankruptcy in order to qualify as an asset that must be scheduled. See Barletta v. Tedeschi, 121 B.R. 669, 671-72 (N.D.N.Y. 1990). However, debtors frequently neglect to list unliquidated causes of action as assets, whether because they have filed a bankruptcy without the assistance of a competent bankruptcy attorney or because, through simple oversight or lack of understanding, they failed to inform their bankruptcy counsel of their existing claims.

    Read More

    Topics: bankruptcy proceeding, unliquidated causes of action, asset, undisclosed asset

    TORTS: Social Host's Legal Duty to Render First Aid

    Posted by Lee P. Dunham on Thu, Jan 18, 2018 @ 09:01 AM

    The Lawletter Vol 42 No 10

    Lee Dunham, Senior Attorney, National Legal Research Group

                During the holiday season, many of us open our homes to friends and coworkers and, unfortunately, sometimes a guest is injured or becomes sick on the property. What is the scope of a host's duty to render first aid to the uncle who cuts his hand while carving the turkey, or the New Year's Eve guest who has far too much to drink?

                Courts of most states generally follow the scheme outlined in the Restatement (Second) of Torts as to duty to render aid. The general rule, of course, is that there is no duty to render aid to one who is in peril, even if it would be easy to provide assistance. See Restatement § 314 ("The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action."). But an exception applies when a "special relationship" exists between the parties.

    Read More

    Topics: torts, social host, legal duty to guest, first aid

    CIVIL PROCEDURE: Issue Preclusion Between Claims Arising Under Two Different Statutes

    Posted by Lee P. Dunham on Mon, Sep 18, 2017 @ 10:09 AM

    The Lawletter Vol 42 No 7

    Lee Dunham, Senior Attorney, National Legal Research Group

                Collateral estoppel, also known as "issue preclusion," prohibits relitigation of factual or legal issues that have been "actually and necessarily decided" in earlier litigation. See, e.g., Banga v. First USA, 29 F. Supp. 3d 1270, 1280-81 (N.D. Cal. 2014) (citing San Remo Hotel L.P. v. San Francisco City & County, 364 F.3d 1088, 1094 (9th Cir. 2004)).  Unlike the related doctrine of res judicata (or "claim preclusion"), which operates as a complete bar to relitigation of an entire claim, under collateral estoppel, the (new and different) claim may proceed, but "the prior judgment conclusively resolves an issue actually litigated and determined in the first action." DKN Holdings LLC v. Faerber, 61 Cal. 4th 813, 824, 352 P.3d 378, 386-87 (2015), reh'g denied (Aug. 12, 2015).  Claim preclusion bars litigation of all issues that were or could have been litigated in the original action under the original claim, while issue preclusion resolves only those issues that were actually litigated. Banga, 29 F. Supp. 3d at 1280-81.

    Read More

    Topics: civil procedure, collateral estoppel, issue preclusion, prerequisites

    TAX: Legal Issues Arising from Tax-Related Identity Theft

    Posted by Lee P. Dunham on Tue, Mar 7, 2017 @ 11:03 AM

    The Lawletter Vol 42 No 2

    Lee Dunham, Senior Attorney, National Legal Research Group

         Tax-related identity theft occurs when someone uses a taxpayer's stolen Social Security number to file a fraudulent refund. Often, the taxpayer is not aware of the identity theft until he or she files a valid tax return and is notified by the Internal Revenue Service ("IRS") that multiple returns have been filed in his or her name. Its incidence, like that of other forms of identity theft, has increased in recent years due to hacking and phishing scams that have enabled cybercriminals to obtain far-reaching access to taxpayers' personal data, including Social Security numbers.

         The schemes of the criminal defendants described in United States v. Philidor, 717 F.3d 883 (11th Cir. 2013), and United States v. Gonzalez, No. 13 CR 154 RWS, 2014 WL 316984, at *2 (S.D.N.Y. Jan. 27, 2014), are illustrative of the nature and scope of the problem.

    Read More

    Topics: tax, identity theft, stolen Social Security number

    CIVIL PROCEDURE: The Attorney Testimony Rule—Attorney Affidavits and Summary Judgment

    Posted by Lee P. Dunham on Fri, Nov 11, 2016 @ 12:11 PM

    The Lawletter Vol 41 No 10

    Lee Dunham, Senior Attorney, National Legal Research Group

         Model Rules of Professional Conduct Rule 3.7 contains the well-known prohibition on lawyer testimony known as the "Lawyer as Witness Rule" or the "Attorney Testimony Rule." It provides:

    (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

         (1) the testimony relates to an uncontested issue;

         (2) the testimony relates to the nature and value of legal services rendered in the case; or

         (3) disqualification of the lawyer would work substantial hardship on the client.

    (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

    Ann. Model Rules of Prof'l Conduct R. 3.7 ("Lawyer as Witness").

    Read More

    Topics: civil procedure, Lee Dunham, attorney testimony rule, professional conduct, Rule 3.7

    ATTORNEY-CLIENT: Colorado Retains the "Strict Privity Rule" for Malpractice in Estate Planning

    Posted by Lee P. Dunham on Mon, Apr 18, 2016 @ 15:04 PM

    The Lawletter Vol 41 No 4

    Lee Dunham, Senior Attorney, National Legal Research Group

         In general, an attorney's duty of care extends only to his or her clients, not to third parties. This rule makes intuitive sense in most areas of the law, where the client is typically the party who is injured directly by attorney malpractice. However, in the estate planning context, where the client is often long dead by the time the malpractice is discovered, the true victims of malpractice may be the beneficiaries, or would-be beneficiaries, of the client's estate.

         Recognizing this problem, courts of several states have relaxed the "strict privity rule" in malpractice suits against estate planning attorneys. Most notably, in Biakanja v. Irving, 320 P.2d 16 (Cal. 1958), and Lucas v. Hamm, 364 P.2d 685 (Cal. 1961), cert. denied, 368 U.S. 987 (1962), California adopted what has come to be known as the "California Test," a multifactor balancing test designed to determine whether a beneficiary can maintain a malpractice claim against an estate planning attorney despite a lack of privity. The factors include "the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury, and the policy of preventing future harm." Lucas, 364 P.2d at 687 (citing Biakanja, 320 P.2d at 19).

         Courts of several other states have adopted a narrower cause of action, referred to as the "Florida-Iowa Rule," under which a beneficiary may maintain a cause of action against the estate planning attorney only if the client's intent, as expressed in the will (or other document), is frustrated. See Espinosa v. Sparber, Shevin, Rosen & Heilbronner, 612 So. 2d 1378, 1380 (Fla. 1993); Schreiner v. Scoville, 410 N.W.2d 679, 683 (Iowa 1987).

    Read More

    Topics: strict privity rule, duty of care to third parties, attorney-client, Lee Dunham, estate planning

    New Call-to-action
    Free Hour of Legal Research  for New Clients
    Seven ways outsourcing your legal research can empower your practice

    Subscribe to The Lawletter

    Latest Posts