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Tuesday, March 22, 2022

 

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Court of Appeal:

‘Continuous Representation’ Might Not End With Firing

Opinion Suggests Tolling of One-Year Statute of Limitation on Legal Malpractice Actions While Services Are Still Being Performed Might Extend to Time When New Lawyer Begins Performing Chores

 

By a MetNews Staff Writer

 

The Court of Appeal for this district has suggested that a tolling of the one-year period for filing a legal malpractice action under the “continuous legal representation exception” might conclude not when the client fires the lawyer but when, it is clear under the facts, the client’s new lawyer was “performing substantive work” on the case.

Feb. 16, 2017 was the date when Glendale criminal defense lawyer Jonathan C. Rosen brought a malpractice suit against Century City litigator Edward O. Lear and his law firm, Century Law Group (“CLG”). Lear and CLG had been defending Rosen in a malpractice action until their services were terminated by the client.

The action was timely, Rosen insisted, because his new lawyer, David Owen of Nemecek & Cole, filed a substitution of attorney form on Feb. 16, 2016. That act, Rosen maintained, ended the representation by Lear & CLG.

Under the “continuous legal representation exception,” he pointed out, he had one year to sue not from the point where he realized that malpractice had occurred, as generally applicable under Code of Civil Procedure §340.6(a), but from the date when representation of him terminated.

Competing Dates

Various dates came into play.

It was on Feb. 1, 2016, that the demurrer to the malpractice complaint against Rosen was overruled, to which Rosen, who was present at the hearing, reacted with anger based on perceived deficiencies in Lear’s performance. On Feb. 3, Lear sent Rosen an email regarding moneys that were owed by him to which Rosen responded:

“Your billing practices are insane. Youre [sic] fired. Prepare my file asap and let me know when it is available for pick up.”

Rosen picked up the file on Feb. 4; he and Lear signed a substitution of attorney form on that date; he met with Owen on that same date; Owen began doing work on the case by Feb. 8; on Feb. 9, CLG expressed concern over the need for Owen’s signature on the form and Rosen responded that Owen’s firm was working on it.

Los Angeles Superior Court Judge Monica Bachner on Feb. 14, 2020, following a trial, held that Rosen’s action was time-barred.

Div. Six Opinion

She cited the Oct. 12, 2016 decision by Div. Six of this district’s Court of Appeal in Energy, Inc. v. SoCal IP Law Group, LLP where it was held that representation of a client ceased on the day that client directed the defendant law firm to send its file to replacement counsel. Backner thus appeared to set Feb. 3 as the date when representation ended but, in the alternative, cited events of Feb. 4 and Feb. 9, saying:

“In the present action, Lear and CLG stopped being Rosen’s counsel when Rosen fired Lear, retrieved his files and signed the substitution of counsel. Also, Lear and CLG ended all work by February 9, 2016. As such, Rosen is barred by the statute of limitations from asserting a legal malpractice action against Lear and CLG.”

In Friday’s Court of Appeal decision, Justice Brian S. Currey of this district’s Div. Four said it is settled that representation is not concluded when a substitution of attorney form is filed, but when the client no longer has a reasonable expectation of continued services in the case.

Date Not Pinpointed

However, he did not unequivocally set that time as being when the client announces the lawyer is off the case. Currey wrote:

“[I]t is undisputed Rosen fired Lear and CLG on February 3, 2016, and Rosen picked up his file from CLG and signed a substitution of attorney form the following day. It is also undisputed that as of February 9, 2016, Rosen’s new attorney was performing substantive work on the case, and, according to Rosen, handling the filing of the substitution of attorney form. On this record, Rosen could not have reasonably believed Lear would continue to provide further legal services after February 9, 2016.”

The case is Rosen v. Century Law Group, B306323.

Chelsea Heaps of the Encino Law Offices of Mark Bledstein represented Rosen after she replaced Westwood attorney Brian D. McMahon. Karen A. Larson of CLG acted for her firm and Lear.

The fact that Larson is a member of CLG caused Bachner to rebuff the firm’s bid for an award of $216,610 under a clause in the retainer contract between it and Rosen calling for fees to the prevailing party in the event of a dispute. Bachner found that CLG was attempting to skirt the California Supreme Court’s 1995 holding in Trope v. Katz disallowing such an award where attorneys who are sued represent themselves.

“Here, although Larson claims to be an independent contractor she is associated with the firm in a manner similar to an associate, partner or counsel,” Bachner wrote. “She is described on their website as one of their lawyers, her name appears on documents and motions filed in this case under CLG’s caption, and the time record submitted in support of Defendant’s Motion is printed on CLG letterhead.”

 

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