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Tolling the Statute of Limitations During Continuing Representation

GENERALLY, THE STATUTE OF LIMITATIONS IS TOLLED FOR THE DURATION OF THE ATTORNEY’S REPRESENTATION OF THE CLIENT.*

*However, some exceptions do exist, as we will discuss below.

The statute of limitations on malpractice is generally tolled for the duration of the attorney’s representation of the client in the ongoing matter where the malpractice occurred. This means that so long as the attorney continues to represent the client regarding the issue, case, or subject matter in which the attorney’s alleged malpractice took place, the statute of limitations will not begin to run.

However, if the attorney continues to represent the client on unrelated matters after conclusion of (or after withdrawing from) the matter in which the malpractice took place the statute of limitations does begin to run during that period. Clients, beware.

WHEN DOES REPRESENTATION “END” FOR PURPOSES OF THE MALPRACTICE STATUTE OF LIMITATIONS?

As mentioned above, continuing representation on other matters does not constitute continuing representation for purposes of tolling the statute of limitations. If the attorney represents the client only on other matters (meaning matters other than the one where the malpractice occurred) the statute of limitations will start to run.

With regard to the matter where the alleged malpractice occurred, the attorney-client relationship has “ended” when the first of the following takes place:

1.  The client requests or consents to termination of representation (with regard to the relevant matter – whether or not the lawyer continues to represent the client on other matters or cases).

2.  The case in which the malpractice occurred is settled, dismissed, or otherwise completed.

3.  A court grants the attorney permission to withdraw from representation of the client (either on the matter in which the malpractice occurred or with regard to all matters for which the attorney formerly represented the client).

4. The transactional matter in which the malpractice occurred is concluded, completed, ended, or abandoned.

5. The attorney completes the tasks for which the client hired him or her.

Generally, continuing representation is evaluated using an objective standard, based on the facts and circumstances of the case. If evidence demonstrates an ongoing, mutually understood attorney-client relationship, and activities taken in connection with or in furtherance of that relationship, the attorney has probably continued to represent the client.

However, in cases where the attorney unilaterally attempts to abandon or withdraw from the attorney-client relationship, courts will generally evaluate the existence of the attorney-client relationship on the basis of whether the client actually or reasonably believed the attorney was continuing to represent him or her in the relevant matter.

Tolling of the statute of limitations in legal malpractice actions involves a highly technical and fact-specific analysis of the individual facts and circumstances of the client’s case. Never attempt to analyze your legal rights on the basis of this or any other article or online source. Always obtain an individual evaluation and analysis of your case by an attorney. This article, and others like it, should not be used to evaluate your legal rights and do not constitute legal advice to any person.

***

Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR AND ANY PERSON. Your rights and experiences may vary. Never use an online article (including this one) to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel. Legal claims against lawyers or other third parties are a complicated topic. If you believe you have a claim against an attorney who failed to provide you with competent representation, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your possible rights and claims.

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