Recent Publications - Avigael C. Fyman


NY’s Enhanced Anti-SLAPP Law May Help Defend 3rd-Party Claims against Attorneys
December 2, 2020 | Professional Liability
New York has recently enacted a new anti-SLAPP (strategic lawsuits against public participation) statute, which provides additional remedies for the defense of frivolous lawsuits brought to deter the exercise of free speech and public petition rights. N.Y. Civil Right Law, §76-a(1)(a) now defines an “action involving public petition and participation” (i.e. a SLAPP action) broadly …
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Updated ESD Guidance Says Attorneys May Be Considered Essential
April 14, 2020 | Professional Liability
Several weeks into the coronavirus pandemic, New York businesses remain subject to the provisions of Executive Order No. 202.8, which required all employers to reduce their in-person workforces at any work locations by 100% starting on March 22. An exception to this restriction applies to “Any essential business or entity providing essential services or functions,” …
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Coronavirus Update – Workforce Reduction and Litigation Impacts
March 23, 2020 | Professional Liability
In recent days, the State of New York has instituted a number of emergency measures affecting business professionals. All employers in New York State providing non-essential services have been directed to reduce their in-person workforce by 100% no later than March 22 at 8 p.m. This order will likely require many business professionals to transition …
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Professional Liability Bulletin – Coronavirus Edition
March 17, 2020 | Professional Liability
The coronavirus pandemic is creating challenges for all sectors of the economy, including for various business professionals. While some steps have been taken to mitigate immediate concerns, professionals must remain aware of their obligations and be mindful of potential pitfalls in this uncertain environment. For example, the legal profession, which typically relies on in-person appearances, …
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Consumer Watchdog Warns of Security Risk of Internet-Connected Vehicles
August 20, 2019 | Privacy, Data & Cyber Law
In a recently issued report, titled “Kill Switch: Why Connected Cars Can Be Killing Machines and How to Turn Them Off,” Consumer Watchdog, a nonprofit consumer advocacy organization, warned that millions of internet-connected cars already on the roadways may be dangerously vulnerable to hacking. While fully autonomous self-driving vehicles may be years away from widespread …
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US, European Regulators Levy Massive Fines for Privacy Violations
July 16, 2019 | Privacy, Data & Cyber Law
This past week, the Federal Trade Commission (FTC) voted to approve a record-breaking $5 billion settlement with Facebook, resolving its investigation into the charge that the company violated a prior settlement with the Commission when it improperly permitted political data firm Cambridge Analytica to access 87 million users’ personal information. Cambridge Analytica created personality quiz …
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FTC Imposes Largest Civil Penalty for Violation of Children’s Online Privacy
March 12, 2019 | Privacy, Data & Cyber Law
On February 29, 2019, the Federal Trade Commission announced that the video social networking app Musical.ly, now known as TikTok, agreed to pay $5.7 million to settle a claim that the company illegally collected personal information from children, the largest such civil penalty to date. The Children’s Online Privacy Protection Act (COPPA) requires websites and …
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Why Out-of-State Businesses Should Take Note of California’s Privacy Law
March 12, 2019 | Privacy, Data & Cyber Law
The California Consumer Privacy Act (CCPA), which passed in 2018 and goes into effect January 1, 2020, is intended to provide some of the most rigorous privacy protections to California residents but is not limited in application to California companies. What entities fall under the CCPA? The CCPA applies to ”businesses” that are for-profit entities …
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Government Shutdown Creates New Cybersecurity Risks
January 16, 2019 | Privacy, Data & Cyber Law
The partial government shutdown, now the longest in U.S. history stretching into its fourth week, presents new risks to cybersecurity, both short term and long term. These effects will be felt not only within government operations, but also in the private sector, which relies upon and works with the government to protect against cyber threats. …
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ABA Issues New Guidance on Confidentiality and the Use of Technology
May 17, 2017 | Privacy, Data & Cyber Law | Professional Liability
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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Democratic State Senators among the Latest to Fall Prey to Ransomware Attack
March 21, 2017 | Privacy, Data & Cyber Law
The Democrats in the Pennsylvania State Senate recently fell victim to a ransomware attack that locked lawmakers and their staffs out of their computer, data, email and website. Hackers were able to infect the party’s network with malware and demanded a ransom payment in bitcoin in order to remove the virus and unlock the files. …
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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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Courts Consider Whether Employers Have a Duty to Safeguard Employee Personal Information
January 19, 2017 | Privacy, Data & Cyber Law
Employers regularly collect and maintain confidential personal information about their employees, including birth dates, social security numbers, addresses, tax information, and bank information.  A data breach may put this employee information at risk.  In two recent decisions, courts have had to consider the scope of employers’ duties to their employees to protect confidential personal information …
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FTC Issues Guidance for Responding to a Data Breach
November 10, 2016 | Privacy, Data & Cyber Law | Professional Liability | Directors & Officers Liability
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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Changes in Legal Malpractice Claims Profile Reflects a Stabilizing Economy
October 11, 2016 | Professional Liability
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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Fyman co-authors article for ABA’s Tort Trial & Insurance Practice Law Journal
April 5, 2016 | Professional Liability | Directors & Officers Liability
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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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 | Directors & Officers Liability | Professional Liability | Complex Torts & Product Liability | Insurance Coverage
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 | Complex Torts & Product Liability | Insurance Coverage | Professional Liability
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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