Thursday, April 27, 2017

No Tolling Under § 340.6 Post Attorney’s Motion to Withdraw

Flake v. Neumiller & Beardslee, No C079790 (D3 Mar 2, 2017)

Under Code of Civil Procedure § 340.6, the statute of limitations on an attorney malpractice claim is tolled while the attorney continues to represent a client. In this case, the attorney sought leave of court to withdraw before the SOL had run, but that permission wasn’t granted till a year later, by which time the SOL had run. So for Plaintiff’s claims to survive, § 340.6 tolling needs to continue apace even after the attorney took steps to withdraw. That, however, is not consistent with § 340.6, which is based on the idea that a client shouldn’t have to investigate the performance of his own lawyer while an attorney client relationship still exists. Once the lawyer moved to withdraw—a fact known to the client—client has no basis to think that the relationship is ongoing. So no tolling from the time the withdrawal was filed.


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