Seattle Business & Commercial Law Blog

http://www.usatoday.com/news/washington/judicial/story/2012-01-23/supreme-court-GPS/52754354/1

The ruling, which marked the justices' first-ever review of GPS tracking, was unanimous. The justices divided, however, on how the Fourth Amendment protection against unreasonable searches and seizures applies to such high-tech tracking.

Two common exceptions to the statute of limitations in legal malpractice cases are the "continuous representation" rule, and the "discovery rule."  The former tolls the statute of limitations until the end of an attorney's representation of a client in the same matter in which the alleged malpractice occurred. See Janicki Logging & Constr. Co. v. Schwabe, Williamson & Wyatt, P.C., 109 Wash.App. 655, 661, 37 P.3d 309 (2001), review denied, 146 Wash.2d 1019, 51 P.3d 88 (2002).  The latter states that the statute of limitations does not start to run on an attorney malpractice claim until the client discovers, or in the exercise of reasonable diligence should have discovered, facts that give rise to his cause of action.  In April of 2011, Division II found in Hipple v. McFadden, 161 Wash.App. 550, 255 P.3d 730 (2011) that the continuous representation rule applied only if client actually had or reasonably should have had no expectation that attorney would provide further services, and that if the trier of fact did not find the continuous representation rule applied, it was also an issue of fact when the discovery rule took effect.

            In the case, Hipple was arrested on a warrant on April 15, 2005, and placed in jail. In the next several days, Hipple contacted the Department of Assigned Counsel (DAC) and was determined eligible for appointed counsel.  On May 9, 2005, Hipple received a letter from DAC notifying him that attorney Carolyn Elsey had been appointed to represent him.  On May 10, 2005, DAC attorney Deborah McFadden filed a special notice of appearance on behalf of Hipple in connection with the contempt matter.  Hipple had initial contacts with Elsey and McFadden until sometime in June 2005, where all efforts to communicate with Elsey and McFadden were unsuccessful.  In September 2006, a third attorney secured Hipple's release on the warrant.  On June 18, 2009, Hipple filed a legal malpractice claim against Elsey and McFadden.  Elsey and McFadden moved to dismiss, arguing the statute of limitations barred the action, and, alternatively, that the complaint did not demonstrate proximate cause. The trial court denied the motion, ruling that under the continuous representation rule, the filing of an appearance by the third, unrelated attorney, on the contempt warrant, was a reasonable point in time for the action to accrue.

            On appeal, Division II observed that "[t]he test for determining whether an attorney's representation of a client regarding a specific subject matter continues or ends is a matter of first impression in Washington.  In general, the determinative event for the continuous representation rule is when the representation ended."  The Court looked at various authorities, including Gonzalez v. Kalu, 140 Cal.App.4th 21, 31, 43 Cal.Rptr.3d 866 (2006).  In Gonzalez, the lawyer claimed to end the attorney-client relationship, but the client disputed receiving notice of the termination and alleged that she still believed the attorney was pursuing her claim. The court concluded that resolution of when the representation ended was a question of fact and that where there is unilateral withdrawal or abandonment, the representation ends "when the client actually has or reasonably should have no expectation that the attorney will provide further legal services."  Finding that the reasoning in Gonzalez was persuasive, Division II found that the client's reasonable expectations was "an appropriate standard to apply because it furthers the stated objective of preventing an attorney from being able to wait out an alleged malpractice claim."  Justice Quinn-Brintnall dissented, to express the view that in order for the continuous representation rule to apply and toll the statute of limitations, Hipple must bear the initial burden to prove that McFadden's and Elsey's representation was continuous.  Justice Quinn-Brintnall further expressed the view that Hipple had failed to meet his burden with McFadden and that the lower court should have been ordered to dismiss the case against her.