Legal Malpractice

CPLR 321 and the Statute of Limitiations In Legal Malpractice

By (Andrew Lavoott Bluestone)

How and when does the attorney-client relationship end?  Does CPLR 321 have anything to do with calculating the date for statute of limitations purposes?  Is there a bright-line rule?

In this Supreme Court case  Frenchman v. Queller Fisher, authored by Justice Carol Edmead, we see all sides of the arguments. The opinion reproduces the arguments of all litigants. The story is that plaintiff had a medical malpractice case and went to Queller Fisher.  At the time, they had Harvey F. Wachsman of counsel to the firm.  Wachsman left the firm and took this case with him.  Not three months later he told plaintiff that he was no longer interested in the case.  The case shuttled between several attorneys until the last attorney took the case to trial and had a moderate win.  It was claimed that two additional defendants were not named in the case, and had they been, the award would have been much greater.

Discussion swirls around how an when an attorney disengages.  Is it the date of a consent to change attorneys?  Is it in the dueling letters from attorney to client to attorney?  Is is the day that trust no longer reposes in the attorney?  Here, Supreme Court chooses the Aaron v. Roemer course, and analyzes when trust no longer resided in the attorney, foregoing the more clear "consent to change attorney" date which is fixed on paper.

To read all the arguments, see: Frenchman v. Fisher, Slip Op 2009 30483(u)

Full post as published by New York Attorney Malpractice Blog on March 10, 2009 (boomark / email).