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Continuous Representation Doctrine Extends Legal Malpractice Time Period

Gary Muldoon
Muldoon & Getz
Rochester, NY
(585) 262-5130


The statute of limitations for a legal malpractice cause of action is three years, regardless of whether the theory is based in tort or in contract. CPLR 214(6). That time period may be extended in various ways: for example, by the doctrine of continuous representation and the relation-back doctrine.

The doctrine of “continuous treatment” is well known in the area of medical malpractice. Application of this common-law doctrine results in the statute of limitations extending back to an earlier time, making viable what might be an otherwise extinguished medical malpractice cause of action.

In the practice of law, where continuous representation of the client occurs with relation to the same matter out of which the malpractice claim arose, the statute of limitations is tolled. Kuritzky v Sirlin & Sirlin, 231 AD2d 607, 647 NYS2d 806 (2d Dept 1996).

The doctrine is marked with trust and confidential relationship, not sporadic but developing, and involves a continuity of professional services. often including an attempt by the attorney to rectify an alleged act of malpractice. Muller v Sturman, 79 AD2d 482, 437 NYS2d 205 (4th Dept 1981).

A question of fact whether the continuous treatment doctrine applied barred the attorney’s summary judgment motion in Gravel v Cicola, 297 AD2d 620, 747 NYS2d 33 (2d Dept 2002). The question was whether the additional services constituted an attempt to rectify the alleged malpractice, or whether the services were connected to the clients; i.e., an attempt to secure an expanded easement, and thus did not arise directly out of the original real estate transaction.

For the continuous representation doctrine to apply, there must be a clear indication of an ongoing, continuing and dependent relationship between attorney and client. In a family law case, the malpractice time period continued after representing the client at trial, where the attorney failed to oppose the other side’s request for attorney’s fees. Kanter v Pieri, 11 AD3d 912, 783 NYS2d 181 (4th Dept 2004). Even where the client retains separate counsel but relies on the first attorney to take certain action, the doctrine will apply. Kanter v Pieri, supra.

Failure to act

A professional’s failure to take action to protect a client's interests cannot of itself constitute a course of representation. Ashmead v Groper, 251 AD2d 716, 673 NYS2d 779 (3d Dept 1998).

An attorney cannot unilaterally terminate the relationship simply by failing to perform services expressly or impliedly requested by a client,. However, a lawyer-client relationship does not continue indefinitely simply because there has been no termination. Baker's Service v Robinson, 85 AD2d 811, 445 NYS2d 630 (3d Dept 1981).

Where the client is unaware of any need for further legal services and there is no mutual understanding that further services are needed, the doctrine is inapplicable. But where the client is aware of the need for further representation and there is a mutual understanding to that effect with the attorney, the failure to act tolls the statute of limitations. The retainer agreement explicitly anticipated continued representation on the matter in question. Shumsky v Eisenstein, 96 NY2d 164, 726 NYS2d 365, 750 NE2d 67 (2001).

Termination of attorney-client relationship

If the client is put on notice of the attorney’s withdrawal from representation, the continuous representation toll ends. Shumsky v Eisenstein, supra (dictum).

Certain types of cases, it has been said, have three parts: the beginning, the middle, and forever. When a case ends, it may be worthwhile for the attorney to send a client a letter memorializing that fact: "I will be closing your file with this office. I thank you for the opportunity to have represented you on this matter. Should other matters arise, please feel free to contact this office."

An attorney’s communication to the client that did not unequivocally terminate the attorney-client relationship, but instead did so only if litigation became necessary, did not sever the relationship. Corless v Mazza, 295 AD2d 848, 744 NYS2d 249 (3d Dept 2002).

Doctrine inapplicable

Where there was a clearly ruptured attorney-client relationship, the continuous representation doctrine did not apply. A cause of action for fraud was also dismissed, as it was merely an attempt to circumvent the limitations period. Murray Hill Investments Inc v Parker Chapin Flattau & Klimpl, LLP, 305 AD2d 228, 759 NYS2d 463 (1st Dept 2003).

Where the ongoing representation is general in nature and unrelated to the subject matter of the malpractice suit, the doctrine is inapplicable. CLP Leasing Co, LP v Nessen, __ AD3d __, 784 NYS2d 535 (1st Dept 2004); Dignelli v Berman, 293 AD2d 565, 741 NYS2d 66 (2d Dept 2002).

© 2008 by Gary Muldoon