The Toll of the Statute of Limitations Under the Continuing Representation Doctrine Ceased When the Attorney Was Discharged, Not When the Consent to Change Attorney Was Subsequently Filed—Various Ways In Which the Attorney-Client Relationship Can Be Terminated In this Context Explained In Some Depth

The Second Department, in a full-fledged opinion by Justice Dillon, held that the continuing representation toll of the statute of limitations ceases when the attorney is actually discharged and not when the consent to change attorney is subsequently filed:

An action to recover damages for legal malpractice must be commenced within three years from the accrual of the claim (see CPLR 214[6]…). Accrual is measured from the commission of the alleged malpractice, when all facts necessary to the cause of action have occurred and the aggrieved party can obtain relief in court … , regardless of when the operative facts are discovered by the plaintiff … . However, “causes of action alleging legal malpractice which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies” … . The three-year statute of limitations is tolled for the period following the alleged malpractice until the attorney’s continuing representation of the client on a particular matter is completed … . For the doctrine to apply, there must be clear indicia of “an ongoing, continuous, developing, and dependent relationship between the client and the attorney” … . * * *

There are different ways that attorney-client relationships can be ended. One way is for the client to discharge the attorney, which can be done at any time with or without cause … . A second way is for the attorney and client to execute a Consent to Change Attorney or for counsel to execute a stipulation of substitution, which is then filed with the court in accordance with CPLR 321(b) (see Vincent Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C321:2). Alternatively, if the attorney deems it necessary to end the relationship without the consent of the client, such as where there is an irretrievable breakdown in the relationship or a failure of cooperation by the client, the attorney may move, on such notice as may be directed by the court, to be relieved as counsel by court order (see e.g. CPLR 321[2]; Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[c]…).

An affirmative discharge of an attorney by the client is immediate. By contrast, from the standpoint of adverse parties, counsel’s authority as an attorney of record in a civil action continues unabated until the withdrawal, substitution, or discharge is formalized in a manner provided by CPLR 321 … . This rule protects adverse parties from the uncertainty of when or whether the authority of an opposing attorney has been terminated …, even when the adverse party is informally aware that a discharge or substitution of an opposing counsel is pending or imminent … . * * *

The essence of a continuous representation toll is the client’s confidence in the attorney’s ability and good faith, such that the client cannot be expected to question and assess the techniques employed or the manner in which the services are rendered … . “One of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties”‘ … . What constitutes a loss of client confidence is fact specific, varying from case to case, but may be demonstrated by relevant documentary evidence involving the parties, or by the client’s actions. Farage v Ehrenberg, 2014 NY Slip OP 07977, 2nd Dept 11-19-14