Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.


Court of Appeal Confirms Termination of Attorney Client Representation is Based on a Fluid Determination of Client's "Reasonable" Expectation

California Code of Civil Procedure section 340.6 gives legal malpractice plaintiffs one year from discovery of their attorney’s wrongful act or omission to bring suit which is tolled as long as “the attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.” But when is the end of representation? Formal withdrawal? Expiration of duties owed to the client? The Third District Court of Appeal recently clarified the answer in Flake v. Neumiller & Beardslee (2017) 9 Cal.App.5th 223.

Stanley Flake lost at trial and, to his surprise, found himself personally exposed for attorney fees and costs of $750,000.00. Alleging he had been assured he carried no personal exposure, Flake filed suit against his trial counsel, Neumiller & Beardslee, 364 days after the court had granted their motion to withdraw. Neumiller moved for summary judgment arguing the suit was not timely…and won.

In opposition to the Motion for Summary Judgment, and in the Court of Appeal, Flake argued “an attorney's representation does not end until the agreed tasks or events have occurred, the client consents to termination, or a court grants an application by counsel for withdrawal”, none of which had occurred in the year proceeding filing of his suit.

Specifically, Flake argued that a lawyers duties to his client remained until a court granted withdrawal and therefore the representation continued through that time. The Court of Appeal described Flake’s premise as “both under-and overinclusive. It is underinclusive because attorneys owe certain duties to former clients after withdrawal, such as the duty ‘at every peril to himself or herself to preserve the secrets, of his or her client… It is overinclusive because the formal act of withdrawing does not demarcate the end of the professional relationship in the context of the legal malpractice statute of limitation.”

Neumiller argued no reasonable client could objectively believe Neumiller was still providing legal services after service of the motion to withdrawal which indicated other counsel would be handling post judgment matters and the Court of Appeal stated “Neumiller [had] the better argument.” The Court of Appeal noted, in the context of section 340.6’s tolling provision, “the representation ends when the client actually has or reasonably should have no expectation that the attorney will provide further legal services.” In Flake’s case the Court noted that when Flake was served with Neumiller’s motion to withdrawal which indicated other counsel would be handling post judgment matters. It was immaterial that Flake subjectively believed Neumiller continued to represent him, “the client's reasonably objective belief controls in all cases.”

Although the Court of Appeal found the client did not have a reasonable expectation of continued representation, Flake v. Neumiller & Beardslee is an important reminder to practitioners that even where they may believe the representation is terminated, evaluation of the date of termination under section 340.6 will focus on the client/plaintiff’s reasonable expectation of continued representation.

Among other obligations, attorneys are required to act in their clients' best interests and to “keep a client reasonably informed about significant developments relating to the employment or representation..." (Cal. Rule Prof. Resp. 3-500). Attorneys who considered themselves withdrawn, formally or otherwise, should remove any possibility their client believes otherwise. This does not just ensure the attorney ensures he or she is "covered" in a potential malpractice lawsuit. Rather, it ensures clients have a clear understanding that an attorney will no longer be acting on their behalf and that they need to determine if they need to retain new counsel.

-- Andrew Servais and Corey Garrard

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**