Does a Disciplinary Complaint End Continuous Representation?
When a claim for legal malpractice accrues is a contentious source of motion practice in legal malpractice litigation. Traditionally it is said that malpractice accrues on the date of the mistake, but that it can be tolled because of continuous representation. Continuous representation is said to require an understanding between client and attorney that more work needs to be done, and that there is a relationship of trust and confidence between them. Disciplinary complaints tend to undermine the "trust and confidence" aspect of the equation.
in Miller v Friedman 2013 NY Slip Op 32030(U) August 23, 2013 Sup Ct, New York County Docket Number: 400833/12 Judge: Joan A. Madden finds that the attorneys continued to represent the client for a while, and that this particular disciplinary complaint did not end the continuous representation.
"An action for legal malpractice must be commenced within three years of accrual, regardless of whether the underlying theory is grounded in tort or contract law. See McCoy v. Feinman, 99 NY2d 295,301 (2002); CPLR 214(6). Accrual is measured from the date when the injury occurs. See Ackerman v. Price ‘Waterhouse, 84 NY2d 535 (1994). However, aider the continuous representation doctrine, when an attorney continues to represent a client in the matter from which the claim arises, the statute of limitations on the legal malpractice claim is tolled and the limitations period does not begin to run until the termination of the attorney-client relationship. Shumsky v. Eisenstein, 96 NY2d 164 (2001); Riley v. Segan, Nemerov & Singer, P.C., 82 AD3d 572 (lst Dept 2011). For the doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing and dependant relationship between the client and the attorney.” Elizabeth Arden, Inc v. Abelman, Frayne & Schwab, 29 Misc3d 1215(A) (Sup Ct, NY Co 2010) (citing Luk Lamellen U. Kupplungbau GmbH v. Lerner, 166 AD2d 505,507 [2d Dept 1990); accord Henry v. Leeds & Morelli, 4 AD3d 229 (lst Dept 2004) (“relationship and bond of continuous trust necessary for the continuing representation doctrine to apply”).
Furthermore, contrary to defendants’ position, under these circumstances, plaintiffs complaint to the Disciplinary Committee filed in 20 10, does not establish as a matter of law that it no longer
represented plaintiff in April 20 1 1. Accordingly, the motion to dismiss on statute of limitations
grounds is denied."
However, defendants’ motion is granted to the extent of striking plaintiffs request for