How to sue your lawyer in New York.

CPLR 214(6) sets a 3-year limitations period for malpractice actions other than medical, dental, or podiatric malpractice, and it applies to lawyers. In McCoy v. Feinman, 99 N.Y.2d 295 (2002), the Court of Appeals held that a legal malpractice claim accrues when all the facts necessary to the cause of action have occurred and the injured party can obtain relief in court, usually the day an actionable injury occurs, even if the client is then unaware of it. In New York, a legal malpractice lawsuit must be filed within 3 years of the injury caused by the lawyer's mistake, whether or not you knew about it.

No discovery rule

New York does not apply a discovery rule to legal malpractice. The Court of Appeals, quoting Shumsky v. Eisenstein, 96 N.Y.2d 164 (2001), and Glamm v. Allen, 57 N.Y.2d 87 (1982), said what is important is when the malpractice was committed, not when the client discovered it. In McCoy, a divorce client's claim that her lawyers failed to secure survivor pension benefits accrued no later than the day the divorce judgment was entered, not years later when her ex-husband died, and her suit was time barred.

Continuous representation

The continuous representation doctrine does toll the 3 years in New York, but narrowly. Under Shumsky, it applies only where the continuing representation pertains specifically to the matter in which the malpractice occurred and the client was aware that the representation on that matter was continuing. A general, ongoing relationship with the lawyer on other matters does not count. New York's continuous representation toll ends when the lawyer stops representing you on the specific matter where the mistake happened, and the 3-year clock then runs.

New York has no separate statute of repose for legal malpractice. Compare states on our deadline table, and see what to do if your lawyer missed a deadline.

Under McCoy, a New York plaintiff must show that the attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession," and that the breach caused the plaintiff's actual damages. A New York legal malpractice plaintiff must prove both a failure to use ordinary reasonable skill and knowledge and actual damages caused by that failure. For litigation errors, you will usually have to prove the case within a case. See the case within a case, explained and what is not legal malpractice.

No certificate of merit, but plan on an expert

New York's certificate of merit statute, CPLR 3012-a, applies only to medical, dental, and podiatric malpractice, so it does not apply to suits against lawyers. In practice, though, most claims need an expert witness to explain the standard of care. See our expert witness guide.

In Carmel v. Lunney, 70 N.Y.2d 169 (1987), the Court of Appeals held that a person convicted of a crime must be able to assert innocence or a colorable claim of innocence before suing the defense lawyer for malpractice. In Britt v. Legal Aid Society, 95 N.Y.2d 443 (2000), the court held that the claim accrues when the criminal proceeding is terminated, which in that case meant the date the indictment was dismissed.

In New York, a criminal malpractice claim requires at least a colorable claim of innocence, and the 3-year clock starts when the criminal case ends in the client's favor. See criminal defense malpractice and can you sue a public defender.

New York has one of the strongest fee arbitration systems in the country. Under Part 137 of the Rules of the Chief Administrator (22 NYCRR Part 137), a client in a civil matter may take a fee dispute to arbitration, and Part 137 arbitration is mandatory for the lawyer if the client requests it. The award is final and binding unless a party seeks de novo review in court within 30 days after it is mailed. Part 137 generally covers disputes between $1,000 and $50,000 (other amounts if both sides consent), and it does not cover criminal matters, malpractice claims, claims for damages beyond adjusting the fee, or disputes where no services were rendered for more than two years. Local programs, such as the New York County Lawyers Association's, also offer mediation if both sides agree. See fee dispute arbitration.

If a lawyer stole your money, the Lawyers' Fund for Client Protection, created in 1982, reimburses losses caused by a lawyer's dishonest conduct in the practice of law, such as stolen estate assets, escrow deposits, or settlement proceeds. New York's Lawyers' Fund can reimburse up to $450,000 per client loss, and claims must be filed within 2 years after you discover the loss. It does not cover malpractice, neglect, fee disputes, or consequential damages, and there is no application fee. See our client protection fund guide.

Lawyer discipline in New York is run by the four Appellate Divisions of the Supreme Court, each of which has one or more Attorney Grievance Committees assigned to particular areas. The committees, made up of lawyers and non-lawyers with professional staff, review written complaints, investigate, and prosecute disciplinary cases. You file with the committee that covers the county where the lawyer practices.

A grievance can lead to discipline, but it is not a way to recover damages. A New York grievance does not pause the 3-year CPLR 214(6) deadline, so a malpractice claim has to be filed on its own schedule. See malpractice versus a bar complaint.

New York does not require lawyers to carry malpractice insurance, and we did not find a rule requiring lawyers to tell clients whether they have it. Ask directly.

1. Find the date of the mistake, not the date you learned of it. That is usually when the 3 years began.
2. Note when the lawyer stopped working on that matter, since continuous representation may extend your time.
3. Request your client file. See how to get your case file.
4. Use Part 137 for bills and the Lawyers' Fund for theft.

If you think your lawyer's mistake cost you, a free case review takes about two minutes and can connect you with an independent attorney in New York who handles legal malpractice claims.