A recurring theme in legal malpractice litigation is the law firm which takes on a case, and just days before the statute of limitations runs out, says, we don’t want the case.  Courts often accept this type of behavior, reasoning that if the client has a good case, there are many attorneys who would take it, and if it is not good, then "so what?"  So long as there is some time left on the s/l, the attorney will be off the hook.

This view fails to take into account those cases which have merit but might take some investigation, or some preparation, or some actual work to get started.  Then sometimes, this type of bait and walk away backfires.  One repeated instance in the NJ/NY situation in which the NJ 2 year statute of limitations on personal injury conflicts with the NY 3 year.  This is exactly what happened in Conklin v Owen ;2010 NY Slip Op 03399 ; Decided on April 27, 2010 ;Appellate Division, Second Department .  From the decision:
 

"In September 2002 the plaintiff retained the defendant Joseph A. Owen, a New York attorney, and his law firm, the defendant Owen Law Firm, PLLC, to represent him. The representation arose out of an accident that occurred on August 4, 2002, at a fair in Sussex County, New Jersey, when a swing the plaintiff sat on allegedly flipped over. The swing allegedly was owned or maintained by a New Jersey entity named Images of Our Own (hereinafter Images). By letter dated June 21, 2005, Owen withdrew as counsel, advising the plaintiff that New York’s three-year statute of limitations was about to expire and to consult another attorney. The plaintiff alleged that the defendants failed to commence an action before the two-year statute of limitations expired in New Jersey, and, as a result, the plaintiff commenced this legal malpractice action.

An attorney is liable in a malpractice action if the plaintiff can prove that the attorney failed to exercise the skill commonly exercised by an ordinary member of the legal community and that such negligence was the proximate cause of damages (see Rudolph v Shayne, Dachs, Stanisci, Corten & Sauer, 8 NY3d 438, 442; Barnett v Schwartz, 47 AD3d 197, 203; Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLC v Comprehensive Mental Assessment & Med. Care, P.C., 26 Misc 3d 1109, 1120-1121). An attorney may be liable for ignorance of the rules of practice, for failure to comply with conditions precedent to suit, for neglect to prosecute or defend an action, or for failure to conduct adequate legal research (see McCoy v Tepper, 261 AD2d 592; [*2]Gardner v Jacon, 148 AD2d 794, 796; Grago v Robertson, 49 AD2d 645, 646).

To succeed on a motion for summary judgment, the defendants were required to demonstrate that the plaintiff is unable to prove at least one of the essential elements of a legal malpractice cause of action (see Allen v Potruch, 282 AD2d 484; Shopsin v Siben & Siben, 268 AD2d 578). The defendants, as the movants, failed to submit evidence sufficient to establish their entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320). The plaintiff likewise also failed to meet his initial burden on his cross motion (id.). There are triable issues of fact, inter alia, as to whether a timely action could have been commenced in a New York court at the time the defendant attorney withdrew (see CPLR 202). Therefore, the Supreme Court properly denied that branch of the defendants’ motion which was to dismiss the cause of action to recover damages for legal malpractice and the plaintiff’s cross motion for summary judgment on the cause of action to recover damages for legal malpractice. "