Wednesday, January 8, 2014
The date of termination of representation was the key issue in an appeal of a trial court determination that declined to dismiss a legal malpractice claim on statute of limitations grounds.
The law firm represented the client in a matrimonial matter.
The client sent the firm an e-mail on August 7, 2008 questioning the handling of her matter. The representation was formally terminated on August 19.
The client sued for legal malpractice by complaint filed August 9, 2011.
The firm claimed that the e-mail ended their representation and that the former client was SOL (here, a polite way of saying that the three-year statute had run).
The New York Appellate Division for the Second Judicial Department agreed with the trial court
Here, the plaintiff's email message dated August 7, 2008, does not conclusively contradict the allegation, set forth in paragraph 103 of her complaint, that the defendants were not discharged as her counsel until August 19, 2008. The email message makes demands and accusations but does not necessarily or unequivocally terminate the parties' attorney-client relationship. The email message states, inter alia, that, "without the judgment being signed, I have no money with which to pay," which suggests the need for further legal work to be performed, and also states that since the plaintiff and counsel both attend the same synagogue, "it will be a pity to have bad blood between us." In light of those statements, and the Consent to Change Attorney that was not executed until August 19, 2008, the defendants failed to conclusively establish that the attorney-client relationship did not continue until the latter date. Accordingly, the defendants' motion to dismiss the complaint was properly denied.
Clarity on such matters favors the attorney. (Mike Frisch)