Monday, June 3, 2013

Legal Ethics Forum: Do You Know When Your Attorney-Client Relationships Are Over?

by Nicole Hyland
Frankfurt Kurnit Klein & Selz PC

Do You Know When Your Attorney-Client Relationships Are Over?

The English novelist and playwright John Galsworthy once wrote “The beginnings and endings of all human undertakings are untidy.”  This observation, which Galsworthy applied to “the building of a house, the writing of a novel, the demolition of a bridge” and “the finish of a voyage,” could also describe many attorney-client relationships.  In the best of all possible worlds, such relationships start with a well-drafted retainer agreement, duly executed after an appropriate conflict-checking process; when they end, they do so with a happy client and a zero A/R balance.  Most of the time, however, lawyers neither live nor practice in the best of all possible worlds. 
The “untidiness” problem can be particularly challenging when it comes to figuring out when an attorney-client relationship ends.  Yet, pinpointing the end of the relationship is critical for at least two reasons.  First, it distinguishes between a “current” client and a “former” client for conflicts purposes.  Since conflicts with current clients are subject to a much higher standard and – in some cases – are unwaivable, knowing whether someone is a former or current client is essential to getting the conflict analysis right.  Second, it cuts off the “continuous representation” tolling period, which is necessary in many legal malpractice cases to calculate the statute of limitations.  Although the limitation period is three years from the act of malpractice, that period may be tolled while the attorney continues to represent the client in the same matter. 

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