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Posted: July 23, 2015

Continuous Representation Doctrine Forecloses Dismissal of Legal Malpractice Claim as Time-Barred

On July 2, 2015, the First Department issued a decision in Overseas Shipholding Group, Inc. v. Proskauer Rose, LLP, 2015 NY Slip Op. 05772, holding that the continuous representation doctrine foreclosed dismissal of a legal malpractice claim as time-barred.

In Overseas Shipholding Group, the defendants moved to dismiss the plaintiff’s legal malpractice claim. The First Department affirmed the trial court’s denial of the defendants’ motion, explaining that “[t]he motion court correctly determined that the legal malpractice claim, based on allegedly deficient tax advice provided by defendants beginning in 2005 and continuing throughout the course of its ongoing representation of plaintiff, is not time-barred.” (Internal quotations and citations omitted). In her concurrence, Justice Richter discussed the scope of the continuous representation doctrine:

The continuous representation doctrine operates as a toll only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim. The rationale underlying the doctrine is that a person seeking legal advice has a right to repose confidence in the professional’s ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered. Relatedly, a client cannot be expected to jeopardize his relationship with the attorney handling the matter while that same attorney continues to represent the client (id.). For these reasons, the limitations period is tolled until the ongoing representation is complete.

(Internal quotations and citations omitted) (emphasis added).

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