Recent Publications - David S. Wilck


Principles of Judicial Estoppel May Constrain the Assignability of Legal Malpractice Claims to Former Litigation Adversaries
March 15, 2017 | Professional Liability | Complex Torts & Product Liability | Insurance Coverage
In a recent decision, the United States District Court for the Southern District of New York considered whether principles of judicial estoppel may prevent an assignee of a legal malpractice claim from prevailing on a claim against his former adversary’s attorneys. Molina v. Faust Goetz Schenker & Blee, LLP, 2017 U.S. Dist. LEXIS 13568 (S.D.N.Y. …
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When a Client Dies, the Attorney Must Protect the Interests of the Client’s Estate
June 30, 2015
Russo v. Rozenholc, 2015 N.Y. App. DIV LEXIS 5885, 2015 NY Slip Op 06029 (N.Y. App. Div. July 9, 2015) While New York law generally requires privity between a client and attorney in order to assert a claim for legal malpractice, in Schneider v. Finmann, 15 N.Y.3d 306, 907 N.Y.S.2d 119 (2010), the New York …
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The assertion of a breach of contract claim against an attorney for excessive billing does not result in the waiver of the attorney-client privilege..
March 31, 2014 | Professional Liability | Complex Torts & Product Liability | Insurance Coverage
The assertion of a breach of contract claim against an attorney for excessive billing does not result in the waiver of the attorney-client privilege as to successor counsel Waiver of the attorney-client privilege often arises in attorney-client disputes, where “the defendant asserts a claim that in fairness requires examination of protected communications… [t]he key to …
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The litigation of a claim for attorneys’ fees in small claims court does not have a preclusive effect on a subsequent claim for legal malpractice.
December 31, 2013 | Professional Liability | Complex Torts & Product Liability | Directors & Officers Liability | Insurance Coverage
Generally, the law in New York is that “a determination fixing a defendant’s fees in a prior action brought by the defendant against the plaintiff for fees for the same legal services which the plaintiff alleges were negligently performed, necessarily determines that there was no legal malpractice.” Breslin Realty Development Corp. v. Shaw, 72 A.D.3d …
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New York Court holds that parents may assert legal malpractice as a defense to fee claims arising from attorneys’ representation of their children.
November 30, 2013 | Insurance Coverage | Directors & Officers Liability | Complex Torts & Product Liability | Professional Liability
Traditionally in New York, law guardians appointed in custody disputes were often viewed as taking on a role similar to that of a guardian ad litem, advocating for what they believed to be the best interests of the child, rather than advocating for the outcome desired by the child. Because these law guardians were often …
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Expert Testimony Required To Show Breach of The Standard of Care Where Attorneys Withdrew As Counsel While Arbitration Was Pending
September 30, 2013 | Professional Liability | Complex Torts & Product Liability | Insurance Coverage
In legal malpractice actions, in order to establish entitlement to relief plaintiffs are generally required to demonstrate that their attorneys were negligent?that is, that they breached their duty of care. While no expert evidence is required to show that the attorney breached his or her duty of care where the “ordinary experience of the fact …
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A Party Who Voluntarily Discontinues An Underlying Action and Foregoes An Appeal Does Not Abandon His Or Her Right To Pursue A Claim …
July 31, 2013 | Professional Liability | Complex Torts & Product Liability | Insurance Coverage
A party who voluntarily discontinues an underlying action and foregoes an appeal does not abandon his or her right to pursue a claim for legal malpractice. While a party who agrees to dismiss an appeal pursuant to a settlement agreement may, under some circumstances, be precluded from pursuing a legal malpractice claim against his or …
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Courts may consider a plaintiff’s status as an attorney in awarding a defendant attorneys’ fees due to the frivolous nature of a plaintiff’s claims
July 31, 2012 | Professional Liability | Complex Torts & Product Liability | Insurance Coverage
Taylor v. Harbour Pointe Homeowners Association, 2012 U.S. App. LEXIS 16216 (2d Cir. Aug. 2, 2012) While attorneys’ fees are more regularly awarded to prevailing plaintiffs under various federal anti-discrimination statutes, prevailing defendants in such cases are not typically awarded attorneys’ fees unless they can demonstrate that the plaintiff’s claims were “frivolous, unreasonable, or groundless, …
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Coverage Concerns In Burning Limits Policies
November 2, 2010 | Professional Liability | Insurance Coverage
Policies that include the cost of defending a particular claim or action in the policy’s limit of liability are commonly referred to as “Burning Limits” or “Defense Within Limits” policies.  Such policies raise a number of significant coverage issues for the insurer, the insured, and the third-party claimant.  This article examines how courts around the …
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