Articles Posted in Engagement Letter

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One question that comes up over and over again is “How do I prove that the lawyer (who I am unhappy with) was my lawyer?” How do I demonstrate an attorney-client relationship.

This video has some basic thoughts on that issue:

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The case is Davis v. Cohen & Gresser, 2018 NY Slip Op 02542, a legal malpractice case filed against a law firm.

Davis alleged that the law firm allowed the statute of limitations to run on RICO claims by failing to name to key parties in a lawsuit. The court ultimately concluded that the statute of limitations had run on the claims. However, the law firm greatly strengthened its position by producing a copy of a carefully drafted engagement letter. The engagement letter demonstrated that the law firm was not retained to handle the RICO action.  Further, the law firm never filed an appearance in that lawsuit.

New York allows the statute of limitations to be tolled where there is a continuous representation of the client by the law firm. Davis attempted to argue that the continuous representation doctrine applied to his case. However, as the court explains, the engagement letter and the court record demonstrated that there was no continuous representation:

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The law firm inserted a fee-shifting clause in its retainer agreement, providing that the “prevailing party” was entitled to attorney fees. The text of the clause is as follows: “”In the event of a dispute between you and the firm regarding any matters relating to the retention . . ., the prevailing party shall be entitled to recover reasonable attorney’s fees” (emphasis added)”

This clause was no doubt intended to allow the lawyers to recover their collection costs in fee litigation. However, because the jury found that they committed malpractice (the opinion does not explain why), the jury awarded plaintiff her attorney fees. The trial court struck the fee award but the Appellate Division reinstated the fee award.

Comment: Lawyers should be cautious before inserting fee-shifting language in fee agreements.