Syracuse Legal Malpractice Lawyer Discusses How to “Toll” the Statute of Limitations in Legal Malpractice lawsuits

My law firm is one of the few – if not the only – law firm in the Syracuse area whose case load includes a significant amount of legal malpractice cases. Unlike some firms, we are not afraid to sue our colleagues when they “mess up”. Here I am going to talk about an important legal malpractice statute-of-limitations issue that we have been arguing.

Two times recently, in two different courts, our clients’ legal malpractice lawsuits were dismissed by a trial judge because they were sued after the three-year legal malpractice statute of limitations had run.  In both cases, we argued that a “toll” should be applied to extend the normal three-year statute of limitations based on a legal concept known as the “continuous representation doctrine”.

What’s the continuous representation doctrine?  Basically it says that the statute of limitations clock gets “tolled” – does not start to run – until the lawyer finishes representing the client on the same matter in which he malpracticed the client.  So, for example, if your lawyer forgets to enter critical evidence at your trial, the three-year clock won’t start to run – it will be tolled — until he has finished trying your case, making any post-trial motions, and taking any appeals.  This could be many years after the original mistake.  Whenever he is completely done representing you “in that same matter” that he malpracticed you, the  three-year statute of limitations for suing him begins to run.

Sounds simple, right?  It’s not.  The problem is that it is not always clear whether a lawyer’s continued work – after he commits the error – is on the same matter in which he committed the malpractice.  Sometimes the work that the lawyer continues to do after the malpractice is on a related but somewhat separate issue.  But is the second issue related enough to the first issue to be deemed “the same matter” so as to toll the running of the statute of limitations?

For example, assume a lawyer represents you for your divorce, and the divorce decree includes an order for support payments.  The same lawyer later represents you when your ex sues you in family court to lower the amount of his support payments.  Assume that once the support proceeding ends, you want to sue your lawyer for a mistake he made in the earlier divorce proceeding. Assume it has been more than three years since the divorce was concluded, but less than three years since the support matter concluded.  Will the support matter be deemed an extension of the divorce matter, that is, “the same matter”, or a “separate” matter?  If the two are deemed the “same matter”, you will beat the statute of limitations defense because the statute of limitations will not have started running until after the support proceeding ended.  But if  the two representations are deemed “separate matters”,  then the statute of limitations started to run way back when the divorce decree was entered, and your three-year clock is expired.

Another example:  Assume a lawyer represented you as a lender in a loan transaction.  His services also included securing a mortgage from the borrower to protect your loan. Assume also that, after the loan papers are all signed, and the borrower begins paying, the borrower then defaults on the loan. The same lawyer then sues to foreclose on the mortgage.  Later, after the foreclosure is complete, you sue your lawyer for messing up the original loan transaction more than three years after all the transactional work was all done, but less than three years after the foreclosure suit was completed.  Will the foreclosure suit be deemed the “same matter” as the loan transactional work?  Or should it be deemed a “separate matter”?  If they are deemed separate matters, then the three-year clock for suing the lawyer started on the day he finished securing the loan, and since that was more than three years before you sued the lawyer, your goose is cooked.  But if the foreclosure is deemed part of the same matter as the loan transactional work, then your suit will be deemed timely.

The answer to the question, “are related legal services part of the same matter?”, like so much in the law, is: “It depends”.

In a recent appellate court victory of ours (Lavelle-Tomko v. Aswad), we convinced the Appellate Division, Third Department to reinstate our client’s claim for legal malpractice based on the continuous representation doctrine.  In that case, the lawyer had represented our client by defending her from a lawsuit brought by her former employer.  After that case settled, the same lawyer represented her again to defend her from a second lawsuit brought by the same employer claiming that she had violated the terms of the settlement.  Were the two representations “separate matters” or “the same matter”?

One of the key arguments we made – and that the appellate court accepted – was that the lawyer’s use of the same file number for the two related matters constituted some evidence that the two were in fact the same matter for statute of limitations purposes.  In other words, the fact that the lawyer never opened a separate file with a separate file number for the second case acted as a kind of admission that he considered the two “the same matter”.

We now have another case on appeal in the Fourth Department where that same issue, in a different context, has come up.  In that case the lawyer who handled a loan transaction on behalf of our client also handled the foreclosure matter when the borrower defaulted. The defendant lawyer is arguing that the loan transactional work was a “separate matter” from the foreclosure lawsuit, and thus the statute of limitations ran out when the client did not sue within three years of the loan transactional work being completed.  We are arguing that the suit is timely because it was brought within three years of the end of the foreclosure action, which we argue was part of the “same matter” as the loan transactional work.  Relying on our own Lavelle-Tomko case, we are arguing that the loan transactional and loan foreclosure work must be deemed “the same matter” because the lawyer used the same file number for both.

It’s great when you can cite to your own prior appellate case to support your current appellate arguments.

Keep safe!

Mike Bersani

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Syracuse NY Legal Malpractice Lawyers
Michaels Bersani Kalabanka

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