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Representation May End Upon Filing of Motion to Withdraw… but not always

When does representation of a client end? Does it end with your client being dismissed from the lawsuit? Does it end when your client receives their settlement check or when you receive your last check for fees? What about for purposes of malpractice?

The statute of limitations for legal malpractice is set out in Code of Civil Procedure 340.6. The part pertinent to this discussion states:

An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first… in no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist:

(1) The plaintiff has not sustained actual injury.
(2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.
(3) The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation…

Code of Civil Procedure Section 340.6 [emphasis added].

Seeing subsection (2), the question remains: When does representation end? The Third Appellate District recently attempted to answer this question. In Flake v. Neumiller & Beardslee (Jan. 31, 2017, No. C079790) ___Cal.App.4th___, former counsel moved to withdraw from representing his client, indicating in his declaration that new counsel had already taken over the handling of the case. The motion to be relieved as counsel was filed on November 25, 2009, was unopposed, and was granted on January 7, 2010. On January 6, 2011, the client sued former counsel for malpractice – more than one year after the motion to withdraw was made but less than one year after the motion was granted.

Former counsel moved for summary judgment, arguing the suit was filed more than one year after any objectively reasonable person would have believed they were still represented by counsel and thus it was time-barred by Section 340.6.

Plaintiff (former client) argued that representation continues until, the agreed-upon tasks or events have occurred, the client consents to termination, or the Court grants the motion for withdrawal.

The trial Court held that the former client (Flake) had no objectively reasonable expectation that his former attorney would continue to perform legal services after Flake was served with the motion to withdraw. This was especially true because the declaration accompanying the motion indicated that a new attorney had taken over representation on Flake’s file. Flake’s malpractice action was deemed untimely.

On appeal, the Appellate Court recognized that “the end of an attorney-client relationship is not always signaled by a bright line…” Discussing the continued representation tolling provision, the Court found that tolling lasts only so long as the attorney works for the client on the same specific subject matter. In reviewing case law, the Court further found that the client’s subjective belief is not determinative.
In deciding whether an attorney continues to represent a client, we do not focus “‘on the client’s subjective beliefs’”; instead, we objectively examine “‘evidence of an ongoing mutual relationship and of activities in furtherance of the relationship.’”
Shaoxing City Maolong Wuzhong Down Products, Ltd. v. Keehn & Associates, APC (2015) 238 Cal.App.4th 1031, 1038

In Flake (supra), because the former attorney stated in the declaration accompanying the Motion to be relieved as counsel, that another attorney had already taken over representation of the client (Flake), the Appellate Court found that “any objectively reasonable client would have understood on receipt of the motion to withdraw that Neumiller [former attorney] had stopped working on the case.” The Court of Appeal found that Flake’s action was thus time-barred by the statute of limitations.

So, to answer the original question, “When does representation end?” – it’s complicated.

The filing of a motion to withdraw will not immediately end the representation in every circumstance. Is there evidence of an ongoing mutual relationship and activities in furtherance of that relationship? If yes, then representation is ongoing. Trickier issues arise when dealing with a long-lasting client whom you represent for numerous different issues, such as a corporate client. For these types of clients, tolling only lasts so long as the attorney works for the client on the same specific subject matter. (Beal Bank, SSB v. Arter & Hadden, LLP, (2007) 42 Cal. 4th 503)


by Jean-Simon Serrano

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