CA: Interpreting the Continuous Representation Doctrine
Laclette v. Galindo, 184 Cal. App. 4th 919 (2010).
Facts: The trial court retained jurisdiction after the underlying matter was settled to monitor compliance with the settlement agreement. During this time Galindo remained counsel of record for Laclette, but Galindo was never called upon to perform any services for Laclette. In a subsequent malpractice suit, Laclette alleged that the statute of limitations was tolled during the time Galindo remained "counsel of record," even though no actual services were rendered.
Issue: Does the continuous representation doctrine apply to toll the statute of limitations even where an attorney is not actively representing the clients' interests?
Ruling: Yes.
The Court noted that the continuous representation doctrine should be viewed "objectively" from the client's perspective:
Absent actual notice to the client that the attorney will perform no further legal services or circumstances that reasonably should cause the client to so conclude, a client should be entitled to rely on an attorney to perform the agreed services and should not be required to interrupt the attorney-client relationship by filing a malpractice complaint.
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Irrespective of the lack of contact between Galindo and Laclette during said two-year period, the evidence established the following: the trial court retained jurisdiction over the Laclette/Ramirez settlement; the settlement obligated Laclette to pay Ramirez $175,000 at the rate of $3,500 per month; Laclette was paying the installments as agreed; and Galindo remained Laclette's counsel of record.
Given these circumstances, and objectively viewing continuous representation from the client's perspective, we cannot say as a matter of law that Laclette could not reasonably expect Galindo to represent her in the event of issues arising concerning the performance of the settlement. We reject Galindo's theory that the two-year hiatus, when no legal services were required of Galindo with respect to the settlement agreement, necessarily had the effect of implicitly terminating Galindo's representation of Laclette.
Lesson: In California, the continuous representation doctrine will toll the statute of limitations in a malpractice action for the period of time the attorney is listed as counsel of record-- even where no active representation is undertaken. To avoid such a situation, attorneys may consider a disengagement letter and/or motion to withdraw.
Editor's Note: The case notes that in New York, the continuous representation doctrine appears to apply only where "there are clear indicia of an ongoing, continuous, developing and dependent relationship between the client and the attorney [and the relationship] is marked with trust and confidence." Muller v. Sturman, NY App. Div. 1981.
As a lawyer in Las Vegas who does both probate cases and legal malpractice cases I worry about the typical case in which a will names a person to serve as executor without bond. This give the executor the potential power to steal the estate assets. Although this rarely happens, it is not uncommon for the executor to be named in the will decades before he or she will serve and in that time period it is not unheard of for a person to acquire a gambling addiction or some other problem. I have given a lot of thought to how carefully the estate attorney has to oversee such an executor's handling of estate money. If the executor is agreeable I suggest we run the money through a sub-account of my trust account. On rare occasions if the executor is not agreeable I refuse the case.