Legal Malpractice

The Boies Case and Statute of Limitations in Legal Malpractice

By (Andrew Lavoott Bluestone)

A recent 3d Department Case gives a well reasoned, and well explained discussion of when the statute of limitations starts to run in legal malpractice situations where the attorney seeks to be relieved.  The Third Department has a unique case, Aaron v. Roemer  [discussed in Deep v. Boies, which cuts against the grain.  In most cases the statute starts to run from the date of a court order relieving the attorney, but in Aaron the time started several days earlier.  There has always been some tension in trying to assimilate this case.  Here the court explains:

"This case is distinguishable from Aaron v Roemer, Wallens & Mineaux (272 AD2d 752 [2000], lv dismissed 96 NY2d 730 [2001]). There, this Court held that the continuous representation doctrine did not extend to formal termination of representation by court order. But, in that case, counsel disclosed confidential information in its motion to withdraw, the client failed to respond by a court-imposed deadline to object to withdrawal and the client then wrote to the court consenting to withdrawal, noting the irretrievable breakdown of the relationship. The court granted the initial withdrawal motion based upon the client's late response and a finding of grounds warranting withdrawal (see id. at 753-754). The actual entry of the order there was more of a ministerial act. No trust and confidence remained between the parties, and counsel apparently did not provide any legal advice after filing the motion to withdraw. Here, the federal court denied the initial withdrawal motion and ordered defendants to continue their representation. Defendants apparently fulfilled that obligation by communicating with opposing counsel and advising plaintiff concerning the language of the preliminary injunction. Thus, the continuous representation doctrine tolled plaintiff's time to file this action to three years from November 4, 2002, if defendants' representation on that date was related to the specific subject matter underlying the alleged malpractice. [*4] "

Full post as published by New York Attorney Malpractice Blog on July 30, 2008 (boomark / email).