By Sam Fogas, Esq., The Maloney Firm, APC

A client generally has one year from the time her attorney ceases representation to bring a legal malpractice and/or breach of fiduciary duty claim against said attorney. But when did the representation end? As the California Court of Appeal recently explained in Nguyen v. Ford (2020) 49 Cal.App.5th 1, it is up to you, the client, to see the writing on the wall and know when your attorney has stopped representing you. While knowing when your attorney has ceased representing you may seem like a simple matter, Nguyen muddies the waters. Consider that even if your attorney has not formally withdrawn from every matter in which she represents you, withdrawal in one matter may begin running the statute of limitations on any claims you have against your attorney in any matter.

.

In Nguyen, attorney Karen Ford and her law firm, Ford & Associates, LLC, represented client Huyen Nguyen in a discrimination lawsuit against her former employer in federal district court. Ford’s retainer agreement with Nguyen specifically excluded work to potentially be performed during the appeals process. After Nguyen’s former employer won summary judgment in the district court, Nguyen asked Ford to appeal to the Ninth Circuit; and she then signed a separate retainer agreement with Ford for the appeal. However, the attorney-client relationship broke down during the appeal and the Ninth Circuit granted Ford’s motion to withdraw as counsel. Nguyen obtained new counsel and ultimately lost the appeal.

.

Six months after the Ninth Circuit ruled on Nguyen’s appeal, Nguyen sued Ford for breach of fiduciary duty and legal malpractice, among other things. In turn, Ford objected to the lawsuit on statute of limitations grounds, arguing that the one-year statute of limitations, or time in which Nguyen’s claims must be filed, had expired. In Nguyen’s opposition to the objection, she argued that despite withdrawing from her appeal, Ford remained attorney of record in the district court and had not followed the district court’s formal procedures to withdraw from the district court proceeding, thereby tolling the statute of limitations. The unpersuaded trial court agreed with Ford and dismissed Nguyen’s complaint without leave to amend.

.

In affirming the trial court, the Court of Appeal noted, “whether termination of representation has ended for purposes of [the statute of limitations] does not depend on whether the attorney has formally withdrawn from representation, such as by securing a court order granting permission to withdraw.” Further, “the inquiry into when representation has terminated does not focus on the client’s subjective beliefs about whether the attorney continues to represent him or her in the matter. Instead, the test is objective and focuses on the client’s reasonable expectations in light of the particular facts of the attorney-client relationship.” Ultimately, it was up to Nguyen to know when Ford had ceased representing her and the statute of limitations on Nguyen’s claims began to run.

.

Nguyen presents an unsurprising yet potentially problematic result: whether an attorney continues to represent a client is determined objectively from the facts of the particular attorney-client relationship and whether a reasonable person under the circumstances would believe that the attorney continues to represent her. With the benefit of hindsight, it may seem apparent that Ford’s representation of Nguyen ended when Ford withdrew from the representation in the Ninth Circuit. However, understanding when your attorney has withdrawn and the statute of limitations on your claims against your attorney has begun to run will likely take a more nuanced analysis. Even a short email, call, or text can potentially affect the status of the representation and the statute of limitations.

.

Accordingly, if you think you have a claim against your former attorney for legal malpractice, breach of fiduciary duty, or similar grounds, do not delay. Besides prolonging a potential recovery, your claims may be expiring. If you have any concerns about the statute of limitations on your claims against your former attorney or any other questions about your claims, seek help from a competent legal professional immediately.

.

Greg Smith represents attorneys in disputes over legal fees and legal malpractice. Sam Fogas is a civil litigation attorney. If you have questions regarding this article contact Greg Smith at gsmith@maloneyfirm.com or Sam Fogas at sfogas@maloneyfirm.com.

< See all News / Events