Firm’s “Continuous Representation” Tolling Ceases When Attorney And Client Leave

I recently discussed New York’s “continuous representation doctrine” under which the limitations period for legal malpractice actions is tolled during the period that the client was represented by defendant counsel. (“New York Declines To Extend ‘Continuous Representation Doctrine’ To Auditor,” posted here). The Supreme Court of California, which had adopted the doctrine, recently examined a variation on the traditional fact pattern.

In Beal Bank, SSB v. Arter & Hadden, LLP, 42 Cal.4th 503, 167 P.3d 666, 66 Cal.Rptr.3d 52 (Cal. Sept. 27, 2007), an attorney rendered legal services to plaintiff while employed by a particular firm. The attorney then left and the client followed him, continuing to engage him for further services in the same matter. Later, the client sued the attorney for malpractice and also named the former firm as a defendant. The original firm argued that once the client followed the attorney to his new firm the statute of limitations resumed running, and had expired by the time the plaintiff filed its lawsuit.

Resolving a split in the intermediate appellate courts, the California Supreme Court held that tolling under the continuous representation doctrine ceases with respect to the original firm when the attorney leaves and the client follows him. Noting that the doctrine is a judicially-created exception to the statute of limitations for legal malpractice actions expressly adopted by the state in reaction to high court precedent, the court refused to assume legislative intent to broaden that exception in the absence of clear textual support.

Trial Attorney’s Role In Settlement Insufficient To Warrant Reversal Of Jury Verdict

Sometimes the settlement of litigation itself becomes the subject of its own litigation. When that happens, the parties face a risk that if they choose to be represented in the second case by the same counsel who negotiated the settlement of the first case, the other side may claim that such counsel is a fact witness and should be disqualified.

However, in Fonten Corp. v. Ocean Spray Cranberries, Inc., 469 F.3d 18 (1st Cir. Nov. 17, 2006), the district court denied a motion to disqualify and the attorney was permitted to participate in the trial, and the appellate court affirmed.

The First Circuit concluded that the mere fact that the attorney participated was not sufficiently prejudicial to justify ordering a new trial. Rather, the actual conduct had to be evaluated, and here it did not involve implying that any witness’ version of events was inaccurate based on the attorney’s inside knowledge.