Client's Demand For Return of Litigation Files Marks End of Attorney-Client Relationship
The Appellate Division, Second Department on April 19, 2023 ruled upon an interesting question of law regarding the statute of limitations in legal malpractice actions. Here are the basic facts. Client sued attorney for legal malpractice alleging that her personal injury actions were dismissed because the wrong parties were sued and it was too late to sue the correct parties. The 3 year deadline or statute of limitations for filing legal malpractice actions runs from the date of the alleged wrongdoing, or in this case, the date suit was filed against the wrong parties. But where there is "continuous representation" on the same matter complained of, the statute of limitations is tolled or delayed until the last date the attorney represented the client.
This legal malpractice action was dismissed as untimely turning on the penultimate question - did the continuous representation toll end when the client demanded and received her litigation files from the attorney; or, - 71 days later when the Court issued an Order relieving plaintiff's counsel from further representation? If the statute of limitations continuous representation toll ran from the date of Court Order, the legal malpractice claim was timely. The Court explained why the toll must run end on the date the client demanded and received her files: "The essence of a continuous representation toll is the client's confidence in the attorney's ability and good faith, such that the client cannot be expected to question and assess the techniques employed or the manner in which the services are rendered....Therefore, [o]ne of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties." Fraumeni v Law Firm of Jonathan D'Agostino, PC, 2023 N.Y. Slip Op. 01984
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