Flake v. Neumiller & Beardslee, 1/31/17 CA3
This case concerns allegations of legal malpractice. With certain tolling exceptions, legal malpractice cases must be filed within one year of when the client discovered or should have discovered the wrongful conduct. Code of Civ. Proc 340.6. Flake sued his attorney, Neumiller, more than one year after the attorney had filed a motion to withdraw as counsel, but less than one year after the court granted that motion. Section 340.6 also provides that the statute of limitations is tolled while the attorney continues to represented the client. While a motion to withdraw is pending, Attorneys must continue representing their clients to avoid prejudice. Nonetheless, Neumiller filed a motion for summary judgment because a substitution of attorney form had been circulated and executed by all concerned; the new attorney had simply failed to file it with the trial court. Moreover, the new attorney was already actively engaged in representing Flake in the matter, including handling the three then-pending post-trial motions. The court granted attorney’s summary judgment. Held: Affirmed.
The end of an attorney-client relationship is not always signaled by a bright line, and “the failure to formally withdraw as attorney of record, standing alone, will not toll the statute of limitations under the rubric of continued representation.” Based on the undisputed facts, the court accepted Neumiller’s theory on appeal, namely that no reasonable client could objectively believe Neumiller was still providing legal services after receiving the motion to withdraw alleging that the case had been handed off to successor counsel.