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Legal Ethics

Due to client’s ‘surreptitious’ removal of file, law firm prevails on malpractice claim

Posted May 31, 2013 4:20 PM CDT
By Martha Neil

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A New York law firm has prevailed against a malpractice claim on statute of limitations grounds over what a state court described as a client's "surreptitious" removal of his file.

Plaintiff Kevin Aseel contended in the Nassau County case that his malpractice litigation was timely, because the defendant law firm, Kroll Moss & Kroll, had continued to represent him after the conduct at issue occurred. But that contention was negated by the lack of trust evidenced in Aseel's removal of his file, explained the Appellate Division, Second Department, in its May 29 opinion.

"The Supreme Court did not err in concluding that the relationship necessary to invoke the continuous representation rule ceased to exist by November 5, 2007, when the plaintiff surreptitiously removed his file from the defendants' office," the appellate division said. "By so removing the file, the plaintiff evinced his lack of trust and confidence in the parties' relationship, and his intention to discharge the defendants as his attorneys. ... Accordingly, because, contrary to the plaintiff's contention, the relationship necessary to invoke the continuous representation doctrine terminated more than three years prior to the commencement of this action, the Supreme Court properly granted that branch of the defendants' motion ... to dismiss so much of the complaint as alleged legal malpractice against the defendants Kroll, Moss and Kroll, LLP, Martin N. Kroll, and Jonathon E. Kroll."

Hat tip: Legal Profession Blog.

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