The Third District Court of Appeal (Sacramento) recently certified for publication an opinion analyzing whether the continued representation tolling of the statute of limitations for legal malpractice suits ends when an attorney moves to withdraw as counsel, or when the court grants the motion to withdraw. In Flake v. Neumiller & Beardslee et al., (Mar. 2, 2017, C079790) __Cal.App.5th__, the court held that an attorney moving to withdraw, not the court ruling on the motion, ends the continued representation tolling period because the motion puts the objectively reasonable client on notice that his attorney is no longer providing him legal services. (Slip opn., p. 10.)
Defendants represented Flake and others in an underlying action through trial. (Slip opn., p. 2) Flake ultimately lost at trial in 2009. (Id. at pp. 2-3.) Defendants moved to be relieved as counsel on November 25, 2009. The court granted the unopposed motion on January 7, 2010. (Ibid.) Flake sued defendants for legal malpractice on January 6, 2011. (Id. at p. 3.) Defendants moved for summary judgment, asserting that the statute of limitations barred Flake's suit. (Id. at pp. 1-3; Code Civ. Proc. § 340.6.) In opposition, Flake argued that the "continued representation" rule tolled the statute of limitations until the court granted Defendants' motion to withdraw on January 7, 2010. (Slip opn., p. 6; Code Civ. Proc. § 340.6, subd. (a)(2).) The trial court granted summary judgment for defendants. (Slip opn., p. 5.)
The Court of Appeal affirmed. (Slip opn., p. 11.) The court reasoned that "the formal act of withdrawing does not demarcate the end of the professional relationship." (Id. at p. 7.) Instead, representation ends when a client "has no reasonable expectation that the attorney will provide further legal services." (Id. at p. 8.) The court held that in this case, defendants' November 2009 motion to withdraw "signaled to an objectively reasonable reader that [Defendant] was no longer providing legal services for Flake." (Id. at p. 10.) Therefore, the statute of limitations began to run from that date, making Flake's suit untimely. (Ibid.)
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