Issue of fact concerning the continuous representation doctrine

In an action brought by a client against his law firm, the appellate court reversed the granting of the law firm’s motion for summary judgment based upon an issue of fact concerning the continuous representation doctrine.

Under the continuous representation doctrine, a person seeking professional assistance is placed in a difficult position if required to sue his or her attorney while the attorney continues to represent them on a particular legal matter (Shumsky v. Eisenstein, 96 N.Y.2d 164, 167–168, 726 N.Y.S.2d 365, 750 N.E.2d 67 [2001] ). Accordingly, the doctrine tolls the running of the statute of limitations on malpractice claims until the ongoing representation is completed (id.). However, the application of this doctrine is limited “to the course of representation concerning a specific legal matter,” and is not applicable to the client’s “continuing general relationship with a lawyer … involving only routine contact for miscellaneous legal representation … unrelated to the matter upon which the allegations of malpractice are predicated” (id. at 168, 726 N.Y.S.2d 365, 750 N.E.2d 67). The record presents an issue of fact as to whether defendant continuously represented plaintiff in connection with a personal injury claim based on the accident, such as to toll the statute of limitations during that time (see Glamm v. Allen, 57 N.Y.2d 87, 94, 453 N.Y.S.2d 674, 439 N.E.2d 390 [1982]; Waggoner v. Caruso, 68 A.D.3d 1, 6–7, 886 N.Y.S.2d 368 [1st Dept. 2009] ). Encalada v McCarthy, Chachanover & Rosado, LLP, 160 AD3d 475 [1st Dept 2018].

R. A. Klass
Your Court Street Lawyer

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Client dissatisfaction with lawyer’s strategy doesn’t mean he can sue his lawyer for legal malpractice.

…general dissatisfaction with the lawyer’s strategy…

Just because a client is dissatisfied with his lawyer, doesn’t mean that he can sue the lawyer for legal malpractice.

In Genet v Buzin, 159 AD3d 540 [1st Dept 2018], the court held that a general dissatisfaction with the lawyer’s strategy wasn’t enough to sustain a lawsuit against him. The court held: “Plaintiffs’ proposed amendment is “palpably insufficient” (MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499, 499, 901 N.Y.S.2d 522 [1st Dept. 2010] ). The allegations underlying the legal malpractice claim merely “reflect plaintiff[s’] dissatisfaction with defendants’ strategic choices and tactics; there is no showing that those choices and tactics were unreasonable” (Kassel v. Donohue, 127 A.D.3d 674, 674, 6 N.Y.S.3d 916 [1st Dept. 2015], lv dismissed 26 N.Y.3d 940, 17 N.Y.S.3d 57, 38 N.E.3d 800 [2015]; see also Rosner v. Paley, 65 N.Y.2d 736, 738, 492 N.Y.S.2d 13, 481 N.E.2d 553 [1985] ). The breach of contract claim is duplicative of the legal malpractice claim, since it arises from the same facts and alleges similar damages (see Rivas v. Raymond Schwartzberg & Assoc., PLLC, 52 A.D.3d 401, 861 N.Y.S.2d 313 [1st Dept. 2008] ).”

R. A. Klass
Your Court Street Lawyer

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