Professional Liability


Broad Language in Retainer Agreement Allows Legal Malpractice Claim to Proceed Against Law Firm
October 2, 2017 | Jonathan B. Bruno | Deborah M. Isaacson
The United States District Court, Southern District of New York recently held that a legal malpractice action could withstand a law firm’s motion to dismiss when the law firm’s retainer agreement was broadly written and did not clearly define the scope of the firm’s representation. In Mitchell Barack v. Seward & Kissel, LLP, (Civil Action …
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Asserting Damages for Data Piracy Under the CFAA
June 20, 2017 | Shari Claire Lewis
Data often is the lifeblood of a business. When a database is breached in one way or another, the results can be devastating—especially if the data falls into the hands of a competitor. Many companies suffering this kind of loss turn to litigation. Perhaps in an effort to obtain federal court jurisdiction, they may assert …
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Is An Attorney’s Misdemeanor Conviction A Prerequisite To New York Judiciary Law § 487 Claims?
June 2, 2017 | Jonathan B. Bruno | Anna Mandel
United States Magistrate Judge Hugh B. Scott of the United States District Court for the Western District of New York recently held, in a report and recommendation, that a plaintiff must plead that an attorney has been convicted of a misdemeanor before she can state a claim for the recovery of treble damages pursuant to …
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ABA Issues New Guidance on Confidentiality and the Use of Technology
May 17, 2017
The American Bar Association’s Standing Committee on Ethics and Professional Responsibility recently issued a Formal Opinion, providing updated recommendations regarding lawyers’ obligations when using technology resources to communicate with clients and to protect confidential client information. Since 1999, the Committee has advised that the ABA Model Rules of Professional Conduct permit an attorney to transmit …
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Second Circuit Rejects Secret-Cookie Suit
April 21, 2017
By now, anyone who uses a cell phone or other method to access the Internet—virtually everyone—has heard of “cookies” intended to track their online activities. Many individuals who object to tracking take steps to block cookies through privacy settings on their web browsers and other technologies. However, in a decision with important implications for those …
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Bruno Authors USLAW Magazine Article
March 30, 2017
Jonathan Bruno’s article, “Independent Counsel Law in Three Key Jurisdictions,” appeared in the Spring/Summer issue of USLAW Magazine. To read the full article, click here. …
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Principles of Judicial Estoppel May Constrain the Assignability of Legal Malpractice Claims to Former Litigation Adversaries
March 15, 2017
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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Online and Social Media Defamation in Today’s Age
February 21, 2017
Twitter, Facebook, Instagram, and other forms of social media are becoming the dominant communication tools in today’s political and social discourse, often entirely supplanting traditional media’s role in public commentary. Social media’s emerging role, combined with the extreme divisions so evident in our country, have caused the courts to consider application of pre-Internet legal standards …
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Self-Proclaimed Publisher of Fake News Sites Loses Circuit Appeal
December 21, 2016
Fake news has been in the news a great deal recently, with some wondering how to address it. The recent decision by the U.S. Court of Appeals for the Second Circuit in Federal Trade Commission v. LeadClick Media , 838 F.3d 158 (2d Cir. 2016), may provide a way, at least in some instances. In …
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Enforcing Copyright Without Having a Registration Certificate
December 6, 2016
Nancy A. Del Pizzo’s article entitled, “Enforcing Copyright Without Having a Registration Certificate” was published in the December 5, 2016 issue of the New Jersey Law Journal. Click here to read the article in its entirety. Reprinted with permission from the December 5, 2016 issue of the New Jersey Law Journal. © 2016 ALM Media Properties, LLC. …
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FTC Issues Guidance for Responding to a Data Breach
November 10, 2016
The Federal Trade Commission recently issued a new guidance for businesses on responding to a data breach. The guidance, which is also available in video format on the FTC’s website here, sets forth the concrete steps that any business should take in the event that personal information has been hacked, stolen, or inadvertently exposed. The …
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New York’s Borrowing Statute May Be Used As An Affirmative Defense To Legal Malpractice
November 8, 2016
The New York Supreme Court, New York County (Justice Ostrager), recently issued a decision, Centre Lane Partners, LLC et al. v. Skadden, Arps, Slate, Meagher & Flom LLP et al., addressing New York’s borrowing statute in the context of legal malpractice claims. New York’s borrowing statute, CPLR 202, provides that: an action based upon a …
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Sixth Circuit’s Decision on Privacy Claims Over Data Breaches
October 18, 2016
Data breaches such as the one Yahoo recently revealed (500 million accounts!) get the big headlines. In response, large companies double down on their efforts to protect the security of their data. But small to midsize businesses often fail to appreciate the risk of a data breach to their own business. They may believe that …
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Changes in Legal Malpractice Claims Profile Reflects a Stabilizing Economy
October 11, 2016
Avigael C. Fyman’s article entitled “Changes in Legal Malpractice Claims Profile Reflects a Stabilizing Economy” has been published in the ABA/BNA Lawyer’s Manual on Professional Conduct. To read the complete article, Click Here. …
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Lessons From Privacy-Related Enforcement
August 16, 2016
Federal and state regulators are bringing more and more enforcement proceedings to challenge the adequacy of corporate privacy practices. Although the best course for businesses is to be proactive and develop privacy rules that meet all applicable requirements before government steps in, a review of various privacy-related settlements that agencies recently have reached suggests a …
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Ruling Upholds Law Firm’s In-House Counsel Attorney-Client Privilege
August 12, 2016
In a hotly contested issue of first impression, the Appellate Division, First Department, has joined a multitude of jurisdictions and has ruled that attorneys who seek the advice of their own law firm’s in-house counsel on their ethical obligations in representing a current client of the firm may invoke the attorney-client privilege to resist subsequent …
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Equitable Recoupment: A Shield To Attorneys’ Recovery Of Legal Fees
August 9, 2016
The Appellate Division, Second Department, recently issued a decision, Lewis, Brisbois, Bisgaard & Smith, LLP v. Law Firm of Howard Mann, addressing the concept of equitable recoupment in the context of attorneys’ actions for legal fees against former clients. Pursuant to a written retainer agreement, Howard Mann of the Law Firm of Howard Mann retained …
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FTC Issues Privacy Tool, Guidance for Health-Related Mobile Apps
June 21, 2016
Only days after the Federal Communications Commission (FCC) adopted a notice of proposed rulemaking to establish privacy guidelines applicable to Internet service providers (ISPs),1 the Federal Trade Commission (FTC) took two actions on the privacy front that will affect a smaller, but fast growing, industry: developers of mobile health applications. Given the pervasive use of …
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FCC Proposed Rules That Impact Everyone’s Online Privacy
April 19, 2016
“Broadband Internet access service” (BIAS) is the essential conduit for the conduct of our daily personal and private lives, without which all Internet activity comes to a stop. Indeed, the Federal Communications Commission recently referred to BIAS as “the most significant communications technology of today.”1 Nevertheless, because BIAS is the road on which Internet traffic …
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Fyman co-authors article for ABA’s Tort Trial & Insurance Practice Law Journal
April 5, 2016
Avigael Fyman, a member of the Directors & Officers and Professional Liability Practice Groups, was a contributor to Recent Developments Affecting Professionals’, Directors’, and Officers’ Liability, which has been published in the Winter 2016 issue of the American Bar Association Tort Trial & Insurance Practice Law Journal. Click here to read the Article. …
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The EU-U.S. Data Protection Dispute and Possible Resolution
February 18, 2016
Early in February, the European Commission and the U.S. government agreed on a new framework for transatlantic data flows, which they are referring to as the “EU-U.S. Privacy Shield.” Lawyers advising clients with an online presence (i.e., almost all lawyers and almost all clients) typically have had little reason to be concerned about the agreement, …
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Standing to Assert Claims for Online Privacy Breaches
December 15, 2015
Many believe that we are on the precipice of a deluge of litigation—both individual and multiparty/class action—concerning how an individual’s data is handled and the remedy, if any, if that data is misused or wrongfully disclosed. A case recently argued before the U.S. Supreme Court involves the intersection of the Internet and privacy laws and …
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Court Overturns ‘Threat’ Conviction, But Leaves Mens Rea Standard Unclear
June 16, 2015
The U.S. Supreme Court has ventured into the world of violent online speech. On June 1, in Elonis v. United States,1 the court overturned a defendant’s criminal conviction for communicating threats on Facebook. The court ruled that a mens rea standard of negligence was insufficient to allow the conviction to stand, but it did not …
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Tech Tools Are Increasingly Used to Disseminate Notice
February 17, 2015
Federal Rule of Civil Procedure 23 requires two forms of class notice. Rule 23(c)(2) requires notice to a potential class member that a class has been certified and substance of the class claims. Rule 23(e) requires notice that a settlement has been negotiated, which will require court approval, and the steps that each potential class …
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Circuit’s Decision Clarifies Law Of Contributory Cybersquatting
October 28, 2014
Nearly 15 years ago, Congress passed the Anticybersquatting Consumer Protection Act (“ACPA”).[1] The ACPA amended the federal trademark law known as the Lanham Act by adding two new causes of action aimed at cybersquatting.[2] Under the ACPA, a person may be civilly liable “if … that person has a bad faith intent to profit from …
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Court Addresses Bitcoin, Other Novel Online Technology Issues
August 19, 2014
Online technology, as this column frequently has noted, presents numerous challenges to attorneys during litigation,[1] while managing their firms and marketing their services,[2] and in trying to keep up with the newest legal developments and rulings.[3]  A recent decision in a case of first impression by Judge Katherine B. Forrest of the U.S. District Court …
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Website Terms of Use: Recent New York Rulings
June 17, 2014
On a nearly daily basis, each of us is asked or asks others to agree to be bound by “terms of use” or “terms of service” (TOS) as a condition of using an Internet website or obtaining goods or services offered through a website. Whether or not TOS are enforceable continues to be a question …
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First Amendment Protects Search Engine Results
April 15, 2014
In an ironic twist, China’s largest search engine, Baidu, has successfully argued that it was entitled to First Amendment protection in regard to its search engine results in the United States, which excluded statements by the plaintiffs, a group of New York residents who “advocated” for “the Democracy movement in China.”   In a question of …
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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
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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Defamation Claims Come of Age on the Internet
February 18, 2014
All of the elements necessary for defamation claims seem to have coalesced on the Internet. There is the ease of posting content, including videos, on blogs and chat sites; the ubiquity of tweets, email, blogs and text messages; the pervasive abandonment of personal privacy; and the ability for almost anyone to quickly set up a …
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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
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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Accessing Email Evidence on Company Computers
December 17, 2013
Work-related email accounts are ubiquitous and often are used by employees for personal reasons. Employees also may use their own personal email accounts on employer provided resources ? with or without the permission of the employer.  Many cases have considered the right of an employer to access an employee’s email accounts from the employee’s work …
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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
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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The Role of the Internet in the Conduct of Litigation
October 15, 2013
Much has been written (in this column and elsewhere) regarding lawyers’ adoption of social media and other Internet enabled applications for such diverse purposes as discovery, advertising, client communication,  research and the like.  Indeed, due to the proliferation of portable devices, including laptops, smartphones and tablets, whether in their offices or not, lawyers now rely …
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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
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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Email Can Constitute Binding Enforceable Stipulation of Settlement
August 20, 2013
Plus ça change, plus c’est la même chose.[1] It is a lesson that lawyers should take to heart when incorporating technology in their every day best practices.  Technology may have changed the speed, immediacy, and even the formality of communication, but the effect of the communication will be determined by its content as interpreted by …
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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
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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When Judges ‘Friend’ Lawyers: Must Recusal Necessarily Follow?
June 18, 2013
It should be no surprise that the continuing growth of social media tools such as Facebook, Twitter, and LinkedIn has led to questions about its use by members of the legal community, including members of the judiciary. In fact, New York’s Advisory Committee on Judicial Ethics[1] has just issued another opinion[2] exploring the ethical constraints …
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Online Retailers Lose Challenge to New York’s Sales Tax
April 16, 2013
In a case that has far-reaching ramifications because of the exponential expansion of cyberspace in general, and because of the growth of commerce over the Internet in particular, the New York Court of Appeals has rejected challenges by two major online retailers to New York’s “Internet tax,”[1] which requires collection of a sales tax on …
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Court Clarifies Copyright Issues of Online Photo Posting
February 19, 2013
Various social media tools, from TwitPic and Instagram to Flickr and Pheed, enable ? indeed, encourage ? users to post their photos online.[1]  Posting a “real time” image from the Mideast, a political event, the Super Bowl, or a snowstorm can be informative and even exhilarating for both the poster and the viewer.  However, there …
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Courts Confront the Question of Service by Facebook
December 18, 2012
Under New York law, service of process may be effected by: (1) personal service; (2) delivery to “a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served” and mail; (3) service on an agent; or (4) so-called “nail and …
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Ethical Issues Arise in Lawyer’s Use of Social Media
October 16, 2012
As with most of the population, the use of social media by lawyers in the conduct and marketing of their legal practices has been “trending” up.[1]  Although well-established ethical rules apply, some social media activity may introduce new twists to the rules’ interpretation or raise issues that a lawyer may not have considered before posting …
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ABA Approves Changes to Technology-Related Ethics
August 14, 2012
The headline could read “ABA drags lawyers, kicking and screaming, into the 21st Century,” but that would not tell the whole story. In reality, for the past decade or more, lawyers have increasingly relied on technology to practice law, but that reliance has grown so incrementally that its potential impact on ethical responsibilities may not …
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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
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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A Landscape View of Privacy Protection Issues
June 30, 2012
Please click the link below to view “A Landscape View of Privacy Issues.” Adobe Reader is required to view the bulletin. If Adobe Reader is not installed on your PC, click here to download and install. A Landscape View of Privacy Issues Reprinted with permission.  All rights reserved. …
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Music To Their Ears: What’s An ASCAP License Worth?
June 26, 2012
The American Society of Composers, Authors and Publishers (“ASCAP”), which represents music composers, writers, and publishers and which has the non-exclusive right to license the non-dramatic public performances of its members’ music, was formed in 1914.[1] As technologies have evolved over the past century, so has ASCAP’s role.  It is inconceivable that performers at the …
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‘Deal of the Day’ Marketing Approved for New York Lawyers – With Caveats
April 17, 2012
Lawyers are not immune from the call of the Internet and the growing marketing opportunities that it represents. Lawyers who provide services to small businesses and individuals are particularly attracted to Internet applications that enable them to target potential clients before the client walks in the firm’s door.  Lawyers that use these Internet applications are …
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FDA Issues Draft Guidance on Social Media Off-Label Use Questions
March 9, 2012
In its ongoing efforts to address the “rapid growth of the Internet, including social media tools and other emerging technologies,” and its use by medical professionals, consumers and drug and medical device manufacturers and distributors, the Food and Drug Administration (FDA) recently issued a draft guidance proposing ways that a drug or device company may …
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Second Circuit Allows Broad School Oversight of Social Media
December 20, 2011
Courts across the country – including a number of federal circuit courts of appeals – continue to struggle with the ability of public school districts to discipline students for offensive online speech made off campus.[1] This past April, in Doninger v. Niehoff, the U.S. Court of Appeals for the Second Circuit weighed in on the …
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“Telecommuting Employee” Insufficient For Jurisdiction
October 18, 2011
The Internet continues to lead to interesting issues of personal jurisdiction arising in cases in New York courts. For instance, the New York Court of Appeals has granted leave to appeal in a case in which the plaintiff is asserting claims for defamation and argues that the trial court should assert long-arm jurisdiction over the …
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