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Posted: April 17, 2018

Continuous Representation Doctrine Applies Only to Representations Specifically Related to the Malpractice Claim

On April 12, 2018, the First Department issued a decision in Davis v. Cohen & Gresser, LLP, 2018 NY Slip Op. 02542, affirming the dismissal of a legal malpractice claim as time-barred because the continuous representation doctrine does not apply to representations unrelated to the malpractice claim, explaining:

Davis cannot rely on the continuous representation doctrine to toll the statute of limitations as the doctrine tolls the Statute of Limitations only where the continuing representation pertains specifically to the matter in which the attorney committed the alleged malpractice.

The documentary evidence establishes that following decedent’s death, defendant did not represent the estate in the Devine action. The retainer agreements executed with defendant after the decedent’s death were explicitly limited to representing the estate in other litigation and not the Devine litigation. In addition, the evidence demonstrated that following decedent’s passing defendant never entered an appearance on the estate’s behalf while other law firms were substituted as counsel in the Devine action, made a motion to substitute the estate as plaintiff, and appeared on behalf of the estate, and ultimately settled with the Devine parties in May 2014.

Further, the continuous representation doctrine does not apply where there is only a vague ongoing representation. For the doctrine to apply, the representation must be specifically related to the subject matter underlying the malpractice claim, and there must be a mutual understanding of need for further services in connection with that same subject matter.

Contrary to purported ongoing representation by decedent’s family and advisors, the record evidence demonstrates the lack of a mutual understanding that defendant would continue to represent the estate in the Devine action, even if there was a continuation of a general professional relationship.

Defendant never appeared in the Devine action after decedent’s death, and when the estate was later substituted as plaintiff, this matter was handled by different counsel. In fact, defendant filed a “Suggestion of Death Upon the Record” advising the court in the Devine action of decedent’s death, in which defendant identified itself as “Former Attorneys for C. Robert Allen, III.” As such, there was no concrete task defendant was likely to perform, and while there was certainly the possibility that the need for future legal work would be required, decedent’s representatives could not have acutely anticipated the need for further counsel from defendant that would trigger the continuous representation toll.

The fact that defendant represented the estate in related matters is not sufficient to establish continuous representation, as these matters were sufficiently distinct as to not be part of a continuing, interconnected representation. The continuous representation doctrine is limited to ongoing representation pertaining specifically to the matter in which the attorney committed the alleged malpractice” and is not applicable to a client’s continuing general relationship with a lawyer.

(Internal quotations and citations omitted).

We both bring and defend professional malpractice claims and other claims relating to the duties of professionals such as lawyers, accountants and architects to their clients. This decision is about a rule–the continuous representation doctrine–that sometimes can extend the statute of limitations to bring a legal malpractice claim. Contact us if you have questions regarding whether a legal malpractice claim is timely.

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