The statute of limitations is an extraordinarily powerful concept.  After a specific period of time, it’s just too late to sue, even though the defendant was totally and wholly wrong.  It’s just too late!  Its a completely arbitrary period of time, too.

So, courts have ameliorated the hardship from time to time.  One way of mitigating the harsh rule is that of "continuous representation" in legal malpractice.  It basically says that the S/L does not start to run until the attorney has completed the work for the client.  Of course there are many intricacies, too. 

This week, Matter of Lawrence  2014 NY Slip Op 07291   was decided on October 28, 2014
by the New York Court of Appeals, with a decision by Read, J.  It is very, very important for the contingent fee world, and has much to say about continuous representation.

"There is a difference between an attorney’s alleged malfeasance in the provision of professional services on his client’s behalf, and a dispute between an attorney and his client over a financial transaction, such as legal fees or, in this case, a gift. Simply put, when an attorney engages in a financial transaction with a client, by charging a fee or, as in this case, accepting a gift, the attorney is not representing the client in that transaction at all, much less representing [*11]the client continuously with respect to "the particular problems (conditions) that gave rise to plaintiff’s malpractice claims" against the attorney (id. at 11). The attorney and client are engaging in a transaction that is separate and distinct from the attorney’s rendition of professional services on the client’s behalf (see e.g. Woyciesjes, 151 AD2d at 1014-1015 [rejecting applicability of the continuous representation doctrine to the plaintiff’s claim that his former attorney improperly charged him a fee of 50% rather than one-third]).

We have never endorsed continuous representation tolling for disputes between professionals and their clients over fees and the like, as opposed to claims of deficient performance where the professional continues to render services to the client with respect to the objected-to matter or transaction. Nor do the rationales underlying continuous representation tolling support its extension beyond current limits.

Two rationales inform the rule. First, a lay person "realistically cannot be expected to question and assess the techniques employed or the manner in which [professional] services are rendered"; specifically, a client cannot "be expected, in the normal course, to oversee or supervise the attorney’s handling of the matter" (Greene v Greene, 56 NY2d 86, 94 [1982]). Thus, the client should not be burdened with the obligation to identify the professional’s errors in the midst of the representation as "[t]he client is hardly in a position to know the intricacies of the practice or whether the necessary steps in the action have been taken" (Siegel v Kranis, 29 AD2d 477, 480 [2d Dept 1968]). Relatedly, a client cannot be "expected to jeopardize his pending case or his relationship with the attorney handling that case during the period that the attorney continues to represent the person" as to the matter giving rise to the malpractice claim (Glamm, 57 NY2d at 94). Second, a client who becomes aware of an error should not be required to sue immediately since that would only "interrupt corrective efforts" (Borgia v City of New York, 12 NY2d 151, 156 [1962] [establishing the continuous treatment rule for medical malpractice]).

When a client pays a lawyer or gives the lawyer a gift, the lawyer is not — in that transaction — "perform[ing] legal services on the [client’s] behalf" (Greene, 56 NY2d at 95). As a result, requiring the client to dispute the payment or seek return of the gift within the ordinary limitations period does not force a lay person to undertake actions that he is ill-equipped to carry out; i.e., to "question and assess the techniques employed" by the professional, or evaluate "the manner in which the services are rendered" or "oversee or supervise the attorney’s handling of the matter" (id. at 94). Notably, clients are obligated to review attorney’s invoices on a timely basis, rather than wait until the representation ends before raising objections (see Whiteman, Osterman & Hanna, LLP v Oppitz, 105 AD3d 1162, 1163 [2013] [an attorney or law firm may recover on a cause of action for an account stated "with proof that a bill, even if unitemized, was issued to a client and held by the client without objection for an unreasonable period of time(, and) need not establish the reasonableness of the fee since the client’s act of holding the statement without [*12]objection will be construed as acquiescence as to its correctness"] [internal quotation marks omitted])."