Klein & Wilson

Don't Delay If You Suspect Attorney Malpractice

Typically, there is a one-year statute of limitations for legal malpractice claims in California, but the statute is tolled (frozen) while the attorney still represents the client. Thus, in many situations, the client has one year from the end of the representation to bring a legal malpractice lawsuit.

In Flake v. Neumiller & Beardslee (9 Cal. App. 5th 223, 2017), the client sued his former attorney more than a year after the attorney filed a motion to withdraw as counsel, but less than a year after the motion was granted. Flake argued the representation did not formally end, and thus the statute of limitations did not begin to run until the motion to withdraw was granted. The appellate court disagreed, finding Flake's argument "both under- and overinclusive." The appellate court held there is no formal line demarcating the end of the attorney-client relationship. The attorney-client relationship ends, at least for malpractice purposes, when the client should have formed an objectively reasonable belief that the representation is over and that the attorney has stopped working on the case. In Flake, the court found the relationship ended when the attorney filed the motion to withdraw as counsel.

In avoiding a bright-line test, the appellate court placed the risk on the client to determine when the statute of limitations starts to run in a legal malpractice case. As a result, clients should bring their legal malpractice claims within a year after any sign the attorney has stopped working on the case or risk being permanently barred from bringing a malpractice action.

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