Time moves on, positively kinetic in retrospect. Stale claims in the legal world are disfavored and have been since at least the Bible. (Deuteronomy 15:1-3). With the passage of time, memory dims and evidence tarnishes. The statute of limitations in legal malpractice cases is often thought of as a stout wall. Hard to get over; impossible to get around.

Plaintiffs are given three years to commence an action for legal malpractice after a wrong is committed or they are barred forever. The statute commences at the mistaken act or departure, not when it is discovered. It does not matter whether plaintiff knows of the malpractice; there is no discovery delay of its onset. The only dispensation is that commencement may be tolled pursuant to continuous representation.

That being said, it can be complex to assign a definite date to the "mistaken act or departure." Observing that the statute is three years is simply the beginning of the calculation. Determining the onset of the legal malpractice statute of limitations is enormously complex. When the clock starts to run depends on multiple considerations including the date and type of the mistake, whether that mistake immediately causes problems and the maturing of an actionable injury. To further complicate the question there is equitable tolling and equitable estoppel and fraudulent concealment.

Simply put, a cause of action accrues for legal malpractice when the negligent act occurs. Pace v. Raisman & Assoc., 95 A.D.3d 1185 (2d Dept. 2012); Hoffenberg v. Hoffman & Pollok, 288 F. Supp. 2d 527 (S.D.N.Y. 2003). As happens in medical malpractice, the statute of limitations may well pass even before plaintiff finds out that he has suffered an injury. McCoy v. Feinman, 99 N.Y.2d 295 (2002); LaBarberra v. New York Eye and Ear, 91 N.Y.2d 207 (1998). "A cause of action to recover damages for legal malpractice accrues when the malpractice is committed, not when it is discovered." Alizio v. Ruskin Moscou Faltischek, P.C., 126 A.D.3d 733, 735 (2d Dept. 2015)

An action to recover damages for legal malpractice must be commenced within three years of accrual, "regardless of whether the underlying theory is based in contract or tort." CPLR 214[6]; Chase Scientific Research v. NIA Group, 96 N.Y.2d 20, (2001); Quinn v. McCabe, Collins, McGeough & Fowler, 138 A.D.3d 1085, 1086 (2d Dept. 2016); Landow v. Snow Becker Krauss, P.C., 111 A.D.3d 795, 796 (2d Dept. 2013).

In legal malpractice, discovery of the departure may come long after the negligent act. A mistake in the creation of a trust will not allow successful suit five years later when plaintiff is audited by the IRS and discovers the problem. Pace, supra; Ackerman v. Price Waterhouse, 84 N.Y.2d 535 (1994). A lease mistake may not reveal itself for years. Even then, it is not always clear when the clock starts to run.

Two principles intersect here. The black letter rule is that the clock starts running when the negligent act takes place. Glamm v. Allen, 57 N.Y.2d 87 (1982); Ruggiero v. Powers, 284 A.D.2d 593 (3d Dept. 2001). But, no cause of action accrues until all its elements are in existence. Plaintiff must suffer an "actionable injury" before the statute starts to run. A cause of action accrues "when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court." Ackerman, supra; McCoy, supra.

These two principles yield different results. Example: An attorney gives negligent advice to a personal injury client regarding workers' compensation rights. The mistake is made and the statute should start to run on that day. However, in Kerbein v. Hutchison, 30 A.D.3d 730, 732 (3d Dept. 2006), it was held not to accrue until an option to withdraw the settlement agreement ended, some months later. There was no actionable injury until then.

Even in litigation one must look to whether the underlying action was ever started. Presume that plaintiff suffers an auto accident on day one and retains an attorney on day 30. The statute of limitations for motor vehicle operator's negligence is three years. CPLR 214(5). Further presume that defendant attorney does absolutely nothing after being retained. When does the statute start to run? It starts to run three years from the date of the accident—on the last day plaintiff could sue the other driver. Under this analysis, until then plaintiff may still sue the other driver, so no "real" mistake has been made. Compare this to an action against a municipality in which the statute might start to run on the 91st day, after no notice of claim is filed or perhaps later, after one year and 90 days when no complaint was filed.

In a second example, presume that defendant attorney is representing plaintiff in a commercial action, and withdraws the case from the trial calendar, eventually allowing it to be dismissed for having been marked off for more than one year. Does the statute start to run on the 366th day after marking off rather than on the marking off day?

From plaintiff's point of view, all of these principles extending the onset of the three-year statute are welcome. None, however, is as welcome or as significant as the principle of "continuous representation." Born of medical malpractice, this principle is based on the equitable question of whether it is fair to require a litigant/patient to sue the attorney/doctor before representation/treatment is over, while trust still reposes and the attorney may still be trying to fix the problem.

The principle of continuous representation holds that the statute of limitations that starts to run on the date of the malpractice is tolled until the end of representation. Presume that a specific witness is necessary to make out a cause of action, and that witness is precluded from testifying by the negligent failure to serve a discovery response or notice. The trial takes place several years after the preclusion order and the attorney continues to represent plaintiff through two rounds of unsuccessful appeals. The last date of representation may well be four or more years (decision on last appeal), after the preclusion order and even longer after the failure to file a notice. However, "[t]he continuous representation doctrine serves to toll the statute of limitations and render timely an otherwise time-barred cause of action for legal malpractice, but 'only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim'" King Tower Realty v. G & G Funding Corp., 163 A.D.3d 541, 543 (2d Dept. 2018).

For the doctrine to apply, "there must be clear indicia of 'an ongoing, continuous, developing, and dependent relationship between the client and the attorney.'" Aseel v. Jonathan E. Kroll & Assoc., 106 A.D.3d 1037, 1038 (2d Dept. 2013).

The benefit can be lost. Farage v. Ehrenberg, 124 A.D.3d 159, 163 (2d Dept. 2014). Alternatively, the attorney might still represent the client, but not for the same action in which the negligence arose. McCoy, supra. More interestingly, plaintiff may forfeit the continuous representation tolling by acts showing that there is no longer continuing trust and confidence between plaintiff and his former attorney. A classic early illustration is Aaron v. Roemer, 272 A.D.2d 752 (3d Dept. 2000). Plaintiff was represented by defendant attorney in Northern District of New York. Plaintiff claimed that his attorneys failed to use an applicable affirmative defense that would have ended the case. After post-trial motions, defendant attorneys moved to be relieved from representing plaintiff. They moved by order to show cause on day 1, and the motion was returnable on day 10. On day 9, plaintiff wrote to the court that he no longer thought that the attorneys were representing him properly, accused them of wrongful behavior, and stated that he no longer had any trust in them.

On day 20 the court signed an order relieving the attorneys. On which day did the statute of limitations start to run for legal malpractice? Not on day 1, even though the attorneys themselves told the court that there was no longer an adequate attorney-client relationship. Not on day 20, when the order was filed relieving the attorneys (or even later, on the day the order was served with notice of entry). No, it started to run on day 9, when the plaintiff wrote his note. Plaintiff commenced his action three years and one day after writing the letter, but less than three years after the attorneys were actually relieved. His legal malpractice case was dismissed upon the statute of limitations.

Traditionally the date that an attorney successfully withdrew from the case or was substituted out ended the continuous representation period. However, this principle has eroded over time. Farage held that "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 …" However, even when there was no formal discharge or substitution, "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." Id. at 168. Asking for return of the case file or seeking to set aside a stipulation of settlement can sever the attorney-client relationship and end the continuous representation analysis. "Thus, the consent to change attorney does not identify, for continuous representation purposes, the benchmark date that the parties' attorney-client representation was actually terminated by the plaintiff." Id. at 168.

Beyond these issues one must calculate stays or tolls of the underlying action (infancy, death, incapacity) under CPLR 208.

To round out the analysis, equitable tolling or fraudulent concealment may allow for tolling of the statute in rare and exceptional circumstances, for egregious conduct by defendant, or an unexpected event over which plaintiff has no control. Johnson v. Nyack, 86 F.3d 8 (2d Cir. 1996); Shared Communications Services of ESR v. Goldman, Sachs & Co., 38 A.D.3d 325 (1st Dept. 2007). The fraud, however, must not be incidental to the breach of fiduciary duty. Romanoff v. Romanoff, 148 A.D.3d 614, 616 (1st Dept. 2017); Access Point Med. v. Mandell, 106 A.D.3d 40, 44 (1st Dept. 2013). The mere "failure to disclose a conflict of interest does not transform a breach of fiduciary duty into a fraud." Failure to disclose one's own alleged wrongdoing does not toll the statute of limitations. Ross v. Louise Wise Servs., 8 N.Y.3d 478, 491 (2007). "[A] plaintiff may not rely on the same act that forms the basis for the claim" to obtain a toll and there must be "some conduct on the part of the defendant after the initial wrongdoing; mere silence or failure to disclose the wrongdoing is insufficient."

Defendants may be equitably estopped from raising a statute of limitations defense if they fraudulently induce plaintiff to refrain from filing suit in a timely manner, by false statement, or a deliberate concealment of facts where there is a duty to disclose. Kaufman v. Cohen, 307 A.D.2d 113 (1st Dept. 2003).

The rules for continuous representation are very strict, and require an agreement on the need for more work, actual continuing work on the case and a continuing relationship of trust and confidence between the attorney and client in order to toll the running of the three-year statute under CPLR 214(6). Many legal malpractice cases are dismissed on the statute of limitations.

Andrew Lavoott Bluestone is an attorney located in Manhattan, New York, specializing in legal malpractice litigation. He is board certified in legal malpractice by the American Board of Professional Liability Attorneys; an adjunct professor of law at St. John's University Law School; and author of the New York Attorney Malpractice Blog, at blog.bluestonelawfirm.com.