Pesantez v. Boyle
The statute of limitations can be tolled, as a result of the doctrine of continuous representation, if a plaintiff in a legal-malpractice case establishes: 1.) the defendant continued to represent the plaintiff in the same underlying case; and 2.) either the plaintiff did not know about the alleged malpractice or, alternatively, the defendant possessed the opportunity to mitigate harm allegedly caused by the malpractice, during the continued period of legal representation. The plaintiff immigrants sought legal permanent residency under the Child Status Protection Act and action on an approved application or petition. Allegedly, they hired the defendant lawyers, Michael Boyle and Isabelle Barreira, of the Law Offices of Michael Boyle, to file an I-824 application, and the defendants failed to file an I-824 application timely, prior to the Aug. 26, 2004, deadline. (The defendants denied that they were hired to file an I-824 application in connection with the plaintiffs' children in Ecuador.) On Jan. 6, 2008, the plaintiffs sued, alleging legal malpractice. The defendant lawyers and law firm moved for summary judgment and argued that the plaintiffs did not file suit timely, within three years of Aug. 26, 2004, pursuant to the three-year statute of limitations. An attorney-client relationship may end: 1.) when the client discharges the attorney; 2.) the matter for which the attorney was hired comes to a conclusion; or 3.) a court grants an attorney's motion to withdraw from representation. Allegedly, the defendant, Attorney Isabelle Barreira, wrote to U.S. Citizenship and Immigration Services on Nov. 2, 2006, to protest the inclusion of only one of three children on the approved I-824 application, and indicated that a new I-824 application was being filed. The court found that there were genuine issues of material fact with respect to when the legal representation ended, when the plaintiffs knew about alleged malpractice and whether the defendant attorneys and law firm had the opportunity to mitigate the alleged harm. The court denied the defendants' motion for summary judgment.