When the attorney-client relationship ends, and continuous representation also ends are the subject of a significant number of decisions.  The requirements for continuous representation, that there is actual work performed, that there is a continuing relationship of trust and confidence and that there is a shared understanding of the need for further work are all required.  When one or the other fails, continuous representation is no longer continuous.

In Walsh v Wallace Law Off. 2022 NY Slip Op 02218 Decided on March 31, 2022 the Appellate Division, First Department applied a bright line rule, utilizing the consent to change attorney as the day continuous representation ended.

“Defendants established prima facie that this legal malpractice action was time-barred, as it was commenced on May 26, 2020, more than three years from the date it accrued. The three-year statute of limitations began to run on March 16, 2017, when a consent to change attorney form was executed by plaintiff, defendant Wallace Law Office, and defendant Leav & Steinberg, LLP (L&S), the incoming counsel (CPLR 214[6]; Frost Line Refrig., Inc. v Gaswirth, Mirsky & Stein, LLP, 25 AD3d 532, 532-533 [2d Dept 2006]). The form was also notarized by a name partner of L&S. This unambiguous written document constitutes documentary evidence that the attorney-client relationship between plaintiff and the Wallace defendants ended more than three years before plaintiff commenced this action (see Seaman v Schulte Roth & Zabel LLP, 176 AD3d 538, 539 [1st Dept 2019]).

We reject plaintiff’s argument that Supreme Court erred in failing to consider the doctrine of continuous representation. The complaint alleged no “clear indicia of an ongoing, continuous, developing[,] and dependent relationship between the client and the attorney” or a “mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (Matter of Merker, 18 AD3d 332, 332-333 [1st Dept 2005] [internal quotation marks omitted]). Equally unavailing is plaintiff’s speculative contention that discovery is required as to the nature, if any, of the Wallace defendants’ continuing involvement in plaintiff’s underlying personal injury lawsuit.”

A recurring issue in legal malpractice is how to deal with the attorney who quits midstream.  In medical malpractice cases that often comes just before the 2 1/2 year deadline.  The attorney will take the case, work it up, and about 2 years into the representation tell the client that he/she is withdrawing.  This leaves the client in a bind.

Similarly,  Ward v Klein 2022 NY Slip Op 02153 Decided on March 30, 2022 Appellate Division, Second Department describes how an attorney quit just before an appellate filing deadline, without any liability.

“The plaintiff, who held a master plumber license from the New York City Department of Buildings (hereinafter the DOB), retained the defendants to represent her with respect to disciplinary charges brought against her by the DOB. The DOB ultimately determined to revoke the plaintiff’s license, and she allegedly further retained the defendants to challenge that determination in a CPLR article 78 proceeding. According to the plaintiff, the defendants timely commenced that proceeding by filing a petition, and the proceeding was transferred to the Appellate Division, First Department. The plaintiff alleged that the defendants then discontinued their representation of her, just before an impending filing deadline. The plaintiff retained another attorney, who obtained an enlargement of time. The plaintiff alleged that she was ultimately successful in her CPLR article 78 proceeding before the First Department.

The plaintiff, pro se, commenced this action against the defendants, inter alia, alleging causes of action sounding in breach of contract, legal malpractice, breach of fiduciary duty, and fraud, all arising out of the defendants’ representation of her during the CPLR article 78 proceeding. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint. In an order entered March 6, 2019, the Supreme Court granted the motion, and the plaintiff appeals.

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the complaint a liberal construction, accept all facts as alleged in the complaint to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87).

Here, the plaintiff failed to state causes of action sounding in breach of contract, legal malpractice, breach of fiduciary duty, and fraud, as she failed to adequately allege the element of [*2]damages with respect to each of those causes of action (see Denisco v Uysal, 195 AD3d 989; McSpedon v Levine, 158 AD3d 618, 621; Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 848; Smith v Chase Manhattan Bank, USA, 293 AD2d 598, 600; see generally Greenberg v Joffee, 34 AD3d 426, 427).”

Ward v Klein 2022 NY Slip Op 02154 Decided on March 30, 2022 Appellate Division, Second Department gives an explanation of how and when a CPLR 205 recommencement of an action is viable and when it is not.

“The plaintiff hired the defendants to represent her in connection with certain disciplinary charges brought against her by the New York City Department of Buildings. After the defendants’ representation of the plaintiff terminated, the plaintiff commenced an action against them, inter alia, to recover damages for breach of contract, legal malpractice, breach of fiduciary duty, and fraud (hereinafter the prior action). The Supreme Court issued an order in the prior action granting the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint (see Ward v Klein, ___ AD3d ___ [Appellate Division Docket No. 2019-04894; decided herewith]). Among other things, the court concluded that the complaint in the prior action failed to state any legally cognizable cause of action (see id.).

The plaintiff then commenced this action by filing a complaint identical to the complaint in the prior action. The plaintiff subsequently filed an amended complaint to reflect a name change of one of the parties. The defendants moved, inter alia, pursuant to CPLR 3211(a) to dismiss the amended complaint. The Supreme Court granted that branch of the motion on the ground that this action was barred by the doctrine of res judicata. The plaintiff appeals.

“Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding” (Bravo v Atlas Capital Group, LLC, 196 AD3d 627, 628 [internal quotation marks omitted]). A dismissal pursuant to CPLR 3211(a)(7) for failure to state a cause of action “has preclusive effect only as to a new complaint for the same cause of action which fails to correct the defect or supply the omission determined to exist in the earlier complaint” (175 E. 74th Corp. v Hartford Acc. & Indem. Co., 51 NY2d 585, 590 n 1; see Furia v Furia, 116 AD2d 694, 695).

Here, the dismissal of the complaint in the prior action had preclusive effect in this action, since the plaintiff filed an amended complaint which, apart from the name change, was identical to the deficient complaint filed in the prior action (cf. Rapp v Lauer, 200 AD2d 726, 728; Furia v Furia, 116 AD2d at 695).”

In Platt v Berkowitz  2022 NY Slip Op 01405 Decided on March 03, 2022  the Appellate Division, First Department wiped out two separate Judiciary Law § 487 claims, on on collateral estoppel and the other for lack of standing.

“The doctrine of collateral estoppel precludes plaintiff’s Judiciary Law § 487 claim against defendant Morrell Berkowitz, Esq. (see Buechel v Bain, 97 NY2d 295, 303 [2001], cert denied 535 US 1096 [2002]). Plaintiff’s claim is premised on alleged misrepresentations or mischaracterizations of evidence Berkowitz made to the courts while representing the Board of Directors of Windsor Owners Corp. in an action brought against plaintiff for her conduct while she was a member of the Board. Plaintiff had a full and fair opportunity to raise her Judiciary Law § 487 claim in her motion for sanctions in that prior action, which was denied (Board of Directors of Windsor Owners Corp. v Platt, Sup Ct, NY County, March 28, 2018, Schecter, J., index No. 155985/14; see Doscher v Mannatt, Phelps & Phillips, LLP, 148 AD3d 523, 523-24 [1st Dept 2017]).

In any event, plaintiff failed to state a cause of action under Judiciary Law § 487 against Berkowitz. Specifically, she failed to allege any actual deceit, and the misconduct that she alleges is not “egregious or a chronic and extreme pattern of behavior” (Doscher, 148 AD3d at 524 [internal quotation marks omitted]).

The claim against defendant Deborah Koplovitz, Esq., for a violation of Judiciary Law § 487(1) was properly dismissed, because the complaint does not allege that Koplovitz was counsel of record in any pending proceeding to which plaintiff was a party (Mazzocchi v Gilbert, 185 AD3d 438, 438 [1st Dept 2020], lv denied 37 NY3d 908 [2021]; Sun Graphics Corp. v Levy, Davis & Maher, LLP, 94 AD3d 669 [1st Dept 2012]).”

When the attorneys represented the client, it prosecuted a condominium sale claim which was dismissed on statute of frauds grounds.  However, in  Komolov v Popik  2022 NY Slip Op 01966, Decided on March 22, 2022,  the Appellate Division, First Department held that:

“Defendants failed to establish a prima facie case that they were not negligent, that any negligence was not the proximate cause of plaintiffs’ alleged damages, or that plaintiffs suffered no compensable damages (see generally Excelsior Capitol LLC v K&L Gates LLP, 138 AD3d 492, 492 [1st Dept 2016]). In a 2010 action involving sale of the condominium unit, among other things, Supreme Court issued an order dismissing, on statute of frauds grounds, a breach of contract claim regarding the sale. It later developed that there was, in fact, a written contract for the sale, and therefore, that the breach of contract action with respect to the sale was not barred by the statute of frauds. Nevertheless, defendants never moved to renew, vacate, or appeal the order.

Regardless of whether the dismissal on statute of frauds grounds was ultimately correct, defendants should have known that the condominium claims, which involved the sale of real property, would be subject to the statute of frauds and thus would require reference to a written contract (General Obligations Law § 5-703[2]); that the statute of frauds could be raised and adjudicated on a motion to dismiss under CPLR 3211(a)(5); and that a dismissal under the statute of frauds would be on the merits, thus precluding any future claim for damages on the sale of the condominium (see Apostolos v R.D.T. Brokerage Corp., 180 AD2d 569, 570 [1st Dept 1992]). As a result, with respect to the condominium sale, it cannot be determined as a matter of law that plaintiffs failed to plead a claim for legal malpractice based upon defendants’ actions in litigating the breach of contract claim.”

Privity of Contract is a doctrine which applies to legal malpractice representations even while it withers as a general principle in product liability cases and elsewhere.  Loss of standing in Bankruptcy often comes up as well.  In National Air Cargo, Inc. v Jenner & Block, LLP
2022 NY Slip Op 01900 Appellate Division, Fourth Department, both come up.

“In appeal No. 3, we conclude that the court properly dismissed the professional negligence/legal malpractice cause of action against JB, insofar as asserted by NAC, on the ground of judicial estoppel. The “doctrine of judicial estoppel may bar a party from pursuing claims which were not listed in a previous bankruptcy proceeding” (Moran Enters., Inc. v Hurst, 160 AD3d 638, 640 [2d Dept 2018], lv denied 32 NY3d 908 [2018], rearg denied 32 NY3d 1195 [2019]; see Popadyn v Clark Constr. & Prop. Maintenance Servs., Inc., 49 AD3d 1335, 1336 [4th Dept 2008]). Here, at the time NAC filed for bankruptcy, it failed to list a potential legal malpractice claim against JB as an asset and obtained a bankruptcy discharge. We conclude that “[t]he failure of . . . [NAC] to disclose a cause of action as an asset in a prior bankruptcy proceeding, the existence of which [NAC] knew or should have known existed at the time, deprive[s] [NAC] of the legal capacity to sue subsequently on that cause of action” (Green v Associated Med. Professionals of NY, PLLC, 111 AD3d 1430, 1432 [4th Dept 2013] [internal quotation marks omitted]). Contrary to the court’s determination, however, JB failed to establish that the doctrine of judicial estoppel applies with respect to NACH or Alf, because JB failed to establish as a matter of law that NACH or Alf, as non-debtors, were in privity with NAC (see In re Avaya Inc., 573 BR 93, 103-104 [SD NY 2017]).

Nonetheless, with respect to appeal No. 3, we conclude that JB is entitled to dismissal of the professional negligence/legal malpractice cause of action against it, insofar as asserted by NACH and Alf, for failure to state a cause of action (see CPLR 3211 [a] [7]). Plaintiffs’ complaint does not allege the existence of an attorney-client relationship between JB and NACH or Alf (see Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813 [2d Dept 2013]) and, instead, alleges only that JB gave negligent advice to NAC. While NACH and Alf submitted an affidavit of Alf attempting to remedy that deficiency, the affidavit does not specifically address JB’s representation of NACH or Alf in the matter giving rise to this lawsuit (cf. Leon v Martinez, 84 NY2d 83, 87-88 [1994]). In light of our determination, we do not reach the issue whether JB provided documentary evidence that ” ‘utterly refute[d] [NACH’s and Alf’s] factual allegations, conclusively establishing a defense as a matter of law’ ” (Matter of Mixon v Wickett, 196 AD3d 1094, 1095 [4th Dept 2021], quoting Goshen, 98 NY2d at 326).”