In legal matters, there is an attorney-client relationship from the moment that the attorney is consulted by the client until the matter concludes. If, during the term of this relationship, the attorney was negligent or commits malpractice in the matter, the client may have a claim against the attorney for legal malpractice. Sometimes, the malpractice is committed at the early stages of litigation and not at the conclusion; for instance, an action may have started in Year 1, malpractice was committed in Year 2, and the action concludes in Year 6....
In legal matters, there is an attorney-client relationship from the moment that the attorney is consulted by the client until the matter concludes. If, during the term of this relationship, the attorney was negligent or commits malpractice in the matter, the client may have a claim against the attorney for legal malpractice. Sometimes, the malpractice is committed at the early stages of litigation and not at the conclusion; for instance, an action may have started in Year 1, malpractice was committed in Year 2, and the action concludes in Year 6. The question then becomes whether or not the client may pursue a claim against the attorney for the malpractice committed in Year 2, when the statute of limitations period may have already passed.
CPLR 214(6) provides that “an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort” must be commenced within 3 years. The cause of action for malpractice accrues at the time of the act, error or omission. See, Julian v. Carrol, 270 AD2d 457 [2d Dept. 2000]; Goicoechea v. Law Offices of Stephen Kihl, 234 AD2d 507 [2d Dept. 1996]; Shumsky v. Eisenstein, 96 NY2d 164 [2001]. In order to protect clients The Court of Appeals has held that a cause of action for legal malpractice accrues against the attorney when the statute of limitations expires on the underlying action for which the attorney was retained. See, Shumsky v. Eisenstein, supra.
The Continuous Representation Toll
The accrual of the three-year statute of limitations is tolled during the period of the lawyer’s continuous representation in the same matter out of which the malpractice arose under the theory that the client should not be expected to question the lawyer’s advice while he is still representing the client. See, Lamellen v. Kupplungbau GmbH v. Lerner, 166 AD2d 505 [2d Dept. 1990]; Shumsky v. Eisenstein, supra. Under the continuous representation doctrine, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the lawyer. See, Kanter v. Pieri, 11 AD3d 912 [4 Dept. 2004]; Lamellen v. Kupplungbau GmbH v. Lerner, supra; Clark v. Jacobsen, 202 AD2d 466 [2 Dept. 1994].
by Richard A. Klass, Esq.
***
[ Resource Box ]
License Information
How the “Continuous Representation” Doctrine Helps Injured Clients by Richard A. Klass, Esq. is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. For permissions beyond the scope of this license, please contact Mr. Klass (email: RichKlass@CourtStreetLaw.com). Insert the words "reprint permission request" in the subject line of the email.
Publishing Guidelines
Permission is granted to publish this article electronically in free-only publications, like a website or ezine (print and non-free publications require permission) as long as the resource box is included without any modifications. All links must be active. A courtesy copy is requested on publication (email: RichKlass@CourtStreetLaw.com).
Article URL:
http://courtstreetlaw.com/newsletters/LawCURRENTSSpring2008.html
Author Name:
Richard A. Klass, Esq.
Contact Email Address:
RichKlass@CourtStreetLaw.com
Author's Firm's Website:
www.CourtStreetLaw.com
Word Count:
369 words
Article Tags:
Continuous Representation, Legal Malpractice
The Enforcement of an Attorney's Retaining Lien
Sometimes, an attorney is discharged by his client without cause, and with a substantial amount of money due to the attorney from the client. Aside from the attorney bringing a plenary action on the debt owed by the client, the attorney may seek alternative measures through the application of liens upon the client’s cause of action or file, through the employment of either a “charging” lien or “retaining” lien. (Continued.)
Why Settle for a Charging Lien?
In litigation, there may come a time when, without cause, an attorney withdraws from the case or the client discharges the attorney. At that instance, the attorney is wondering how he is going to get paid the remainder of his legal fee from his client. He may also be wondering what mechanisms may be used to get paid. (Continued.)
Plaintiffs Should Be Permitted to Amend the Complaint Pursuant to CPLR 3025
Civil Practice Law and Rules [CPLR] Section 3025 authorizes the amendment of a pleading in an action, including the Complaint of the plaintiff. According to subsection (b) of CPLR 3025, leave of court is needed to amend a pleading once issue has joined; however, it should be freely given to a party.New York courts have held that, in the absence of prejudice to the defendant, the amendment of a pleading should be freely granted by a court. It is also well established law that a motion to amend a pleading should be freely given absent a showing by an opposing party of surprise or prejudice....
