Thursday, October 11, 2012

A Few Phone Calls Do Not Establish Continuous Representation

The "continuous representation doctrine did not save a claim of legal malpractice from dismissal on statute of limitations grounds, according to a recent decision of the New York Appellate Division of the First Judicial Department:

Defendants made out a prima facie showing that the three-year statutory limitations period (CPLR 214[6]) expired before this legal malpractice action was commenced in July 2010. Plaintiffs failed to raise an issue of fact whether the doctrine of continuous representation applied here to toll the limitations period. The only evidence plaintiffs submitted on this issue was an affidavit by the husband of one of the plaintiffs, not a party to plaintiffs' retainer agreement with defendants, stating that he spoke to the individual defendant four times between January and May 2007. Even assuming the husband had the authority to speak for plaintiffs, the intermittent telephone contact between himself and defendants does not constitute "clear indicia of an ongoing, developing and dependent relationship between the client and the attorney" or of "a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim" (citations omitted)

The dismissal of a related breach of fiduciary duty claim was also affirmed. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2012/10/the-continuous-representation-doctrine-did-not-save-a-claim-of-legal-malpractice-from-dismissal-on-statute-of-limitations-gro.html

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