The Break-Up: Knowing When the Professional Relationship is Over

All good things must come to an end…and most bad things too.  The same must be true with a professional’s engagement.  Professional Liability Matters has previously warned of the importance of clear engagement letters to set reasonable expectations regarding the scope of the relationship. But many professionals may take for granted the importance of clarifying when that relationship has come to an end.  This is a key risk-management pointer to avoid malpractice.

A recent New York case provides clarity on the otherwise murky issue of defining the end of the attorney-client relationship.  The main issue in Aseel v. Jonathan E. Kroll & Associates PLLC, 2013 NY Slip Op. 03806 (May 29, 2013) which was an appeal from a dismissal of a legal malpractice suit, was whether the trial court correctly concluded that the statute of limitations was not tolled by the continuous representation doctrine.  Central to the court’s decision was exactly when the relationship concluded.

The lower court granted the attorney defendant’s motion to dismiss the malpractice action finding that the claims were barred by the statute of limitations.  On appeal, the plaintiff contended that the action was timely because the firm continued to represent him after the allegedly culpable conduct. The Appellate Court rejected the plaintiff’s contention of a continuous relationship and held that the trial court correctly concluded that the relationship clearly ended when the plaintiff surreptitiously removed his file from his attorney’s offices.  The court reasoned that the removal of the file evidenced the plaintiff’s lack of trust and confidence in the relationship and his intention to discharge his attorneys.  Thus, the court refused to extend the statute of limitations pursuant to the continuous representation doctrine and upheld the dismissal of the malpractice suit.

Although not always the case, this decision demonstrates that sometimes there is a bright line triggering the end of the relationship between professional and client.  Often, this line is not clear and therefore must be explicitly defined by the professional. Just as important as setting the scope of the relationship via an engagement letter, professionals should consider a disengagement letter when applicable, or another form of correspondence notifying the client that the professional relationship (and hence the majority of the professional’s obligations) has come to an end.

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  1. Termination is a significant issue which freuently arises in legal mal cases. Attorneys need to document the point of termination, here the “interruption” of the trust and confidence’ inherently required by the nature of the relationship. Fortunately for the attorney’s here, they got lucky because the client actually appeared at the attorney’s office, on a specific date, and took his files, an event which clearly marked the date of termination. Otherwise the client will delay sending something like a termination letter, if he sends anything at all, and thereby delay the “triggerpoing” of the SOL.

    In a litigation case, there is usually a formal “Substitution of Attorneys” document actually filed with court. However, the “breakdown” usually actually occurred weeks or months before (yes, clients really do conceal their contacts with other potential replacement attorneys). Those few weeks could “save the day” in a lawsuit filed right on the eve of the SOL. Hence, when client stops returning calls, or paying their bills, or bringing in the documents you requested, its documentation time for the attorney.

    A polite subtile reminder letter could do, something like, “I haven’t heard back from you after leaving several messages over the past 3 weeks. . . . “; or, “I cannot continue my representation of you under these circumstances, please immediately return my messages over the past 3 weeks, so I can address any concerns you might have. It is imparative that I obtain the requested information and documents from you. . . . “, etc. Write another letter after not hearng back after that. You at least have your own “record” establishing the point of “breakdown”, and that may “save the day” should the issue later arise.

  2. This situation is just as true for CPA’s as it is for attorneys. Public perception of what the professional is providing as a service contributes to the need for profesionals to clearly outline what they will and WILL NOT do for a client in addition to how disputes will be handled if there’s any disagreement.

  3. I can’t agree more. I’d go a little further in saying that way too many professionals don’t even use contracts for services or they use them “at times”. Those that do use them are not as consistent about using disengagement letters or similar notices as they need to be. Unfortunately I have way too many stories of situations with unhappy endings that probably could have been avoided. What’s the saying…an ounce of prevention is worth a pound of cure?

  4. Pingback: Dropping the Problem Client | Professional Liability Matters

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