Recent Publications - David S. Wilck


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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Wilck Co-Authors USLAW Article
September 13, 2018 | Professional Liability

David Wilck has co-authored a USLAW article, “Navigating the One-Client/Two-Client Tripartite Relationship Between the Carrier, Insured, and Defense Counsel,” in the Fall/Winter issue of USLAW Magazine.

Click here to read the Article.

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Principles of Judicial Estoppel May Constrain the Assignability of Legal Malpractice Claims to Former Litigation Adversaries
March 15, 2017 | Insurance Coverage | Complex Torts & Product Liability | Professional Liability

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 | Insurance Coverage | Complex Torts & Product Liability | Professional Liability

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 | Complex Torts & Product Liability | Insurance Coverage | Directors & Officers Liability | Professional Liability

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 | Insurance Coverage | Complex Torts & Product Liability | Professional Liability

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 | Insurance Coverage | Complex Torts & Product Liability | Professional Liability

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

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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 | Insurance Coverage | Complex Torts & Product Liability | 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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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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