If you feel the grim reaper approaching, you’d better inform your clients of any looming statutes of limitations — if you don’t, your estate may be liable on a legal malpractice claim. That’s the message of a case decided earlier this year by the New York court of appeals.
In Cabrera v. Collazo, the plaintiff first hired Collazo to pursue a wrongful death action arising from medical malpractice. The decedent had died in November 2008, and plaintiff hired Collazo the same month. After doing nothing for almost a year, Collazo entered into a co-counsel and fee-sharing agreement with another lawyer, Tanzman. Collazo effectively dropped out of the case and was convicted of immigration fraud.
At some point in 2010, both lawyers stopped responding to the client’s attempts to communicate with them.
With the clock ticking, Tanzman tried to hurry the New York surrogate’s court in issuing letters of administration that were necessary to launch the medical malpractice case; he emphasized to the court that the statute of limitations would run shortly.
On October 6, 2010, the court issued the letters; but Tanzman died of cancer on October 24. The statute of limitations on plaintiff’s wrongful death action expired 11 days later, without any complaint for wrongful death ever having been filed.
It was only eight months later that the client learned that Tanzman had died, and that her medical malpractice claim had likewise died.
In response to the legal malpractice claim against Tanzman’s estate, the executor argued that neglecting a client’s matter is not actionable if the lawyer dies before the applicable limitations period runs against the client in the underlying case. The court of appeals rejected that argument because Tanzman knew he was ill with cancer and might die, but did nothing to protect the statute:
Tanzman died as a result of a chronic, terminal illness that he knew, or should have known, presented the immediate risk that his ability to represent his client’s interests might be impaired…
Despite this knowledge, Tanzman didn’t warn plaintiff so that she could protect her claim.
The court held that potential liability could have been avoided if Tanzman had handed off the case to a successor while there was still time to file it; but here, based on the previous neglect, that possibility was “foreclosed,” so Tanzman had a duty to take action to protect the client’s rights. The court affirmed denial of the estate’s motion to dismiss.
This case underscores the obvious importance to your legal practice of planning ahead — even for your own demise. Do you have a plan in place if you become ill or incapacitated? If you die suddenly? If not, Cabrera teaches that your estate might have to clean up the resulting mess.
Postscript: Model Rule 1.3, comment [5] says that the duty of diligence may require solo practitioners to prepare a plan for their eventual death or disability. The ABA has compiled a list of resources that can be helpful.