Nguyen v. Ford (Sixth App. Dist., case no H046809, filed 4/24/20, published 5/13/20) addresses tolling under the legal malpractice statute of limitations, specifically Code of Civil Procedure section 340.6(a)(2) which provides that the limitations period is tolled while “the attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.” Nguyen hired Ford to pursue a discrimination cause of action against her former employer. They lost in Federal District Court. Nguyen then executed a new fee agreement for Ford’s services in appealing that ruling in the Ninth Circuit. During the course of the appeal, the attorney-client relationship broke down and Ford filed a successful motion to withdraw from Nguyen’s representation in the appellate court, granted in April 2015. Nguyen hired new appellate counsel, but to no avail, the Ninth Circuit upholding the dismissal of her case in May 2018. Six months later she filed a legal malpractice action against Ford.
Nguyen argued that, although Ford stopped representing her in the appeal in April 2015, she never withdrew from representing her in the Federal District court, thus tolling the legal malpractice period of limitations until her action was dismissed in May 2018. The Sixth District disagreed. They found that formal withdrawal is not required to end the tolling provision for continuous representation.
“In addition, 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. “In deciding whether an attorney continues to represent a client, we do not focus ‘ “on the client’s subjective beliefs” ’; instead, we objectively examine “evidence of an ongoing mutual relationship and of activities in furtherance of the relationship.”’ [citations]. Representation ends “ ‘ “when the client actually has or reasonably should have no expectation that the attorney will provide further legal services. [citation] In other words, tolling under the continuous representation exception ends when “ ‘ “a client has no reasonable expectation that the attorney will provide further legal services.”
Nguyen, slip opinion at 11. Even if you regard the District Court proceeding and the Appeal as two separate representations, Nguyen could not have had a reasonable expectation that Ford someone continued to represent her in the District Court, given that Ford had served with notice that her motion to withdrawal in the appeal had been granted, a notice of lien by her “former attorney”, and even a notice of withdrawal in the District Court action, all in April 2015!
Nguyen also tried to argue that her breach of fiduciary duty claim was not barred by section 340.6. The Sixth District noted that section 340.6 applies to the provision of professional services, not just legal services and that Nguyen provided no evidence that the breach occurred other than in the provision of professional services.
The Nguyen case has application even in contexts outside legal malpractice. Not the least is the rule of limitation in disciplinary proceedings, State Bar Rule of Procedure 5.21, which contains a similar tolling provision while the attorney represents the complaining witness. It is also relevant for the application of Rules of Professional Conduct, such as Rule 1.8.1, which governs business transactions with current clients.
Notwithstanding Nguyen, giving the former client explicit notice that the relationship has ended is still a sound risk management tool.