Wednesday, February 16, 2011

On the need to make sure the client knows the representation has ended

When discussing the formation of the attorney-client relationship in class, we talk about the Togstad case in which the relationship was formed out of a misunderstaning. I stress that it is very important for lawyers to be clear when they decide to reject a prospective client.

Having said that, I usually remind my students that it is equally important to be clear with current clients about when the representation actually ends.

A new case our of the Supreme Court of New York called McCann v. Manheimer, exemplifies this last point. In this case, the plaintiff filed suit for legal malpractice against her former attorneys. Defendant attorneys moved to dismiss arguing that the suit was barred by the applicable statute of limitations because it had been filed more than three years after the termination of the attorney-client relationship. Defendants alleged that the attorney-client relationship ended on October 28, 2005, at or around the time when they mailed a letter to plaintiff terminating the attorney-client relationship. Plaintiff, however, alleged that she never received the letter, and that she understood the attorney-client relationship continued through March, 2007. Despite New York law providing that a letter that has been mailed is presumed to have been received, the Court held that plaintiff had a raised a triable issue of fact and denied the motion to dismiss.

Conclusion: lawyers not only have to be clear as to when the representation ends; they have to make sure the message is received.

Thanks to the Legal Malpractice Law Review for the link

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