Legal malpractice claim filed more than a year after client’s acceptance of attorney’s withdrawal was properly dismissed as time-barred, and retainer agreement attorney fee clause was broad enough to cover a malpractice claim whether sounding in tort or contract. Client waited more than a year after learning of attorney’s malpractice in failing to timely file the client’s patent application. Client could not rely on the continuous representation exception to CCP 340.6’s one-year limitations period after it received attorney’s letter stating that his representation would have to cease forthwith due to client’s threatened malpractice action. Attorney’s representation did not continue until the later date on which he transferred the client’s files to a new attorney because file transfer is a clerical task, not legal representation. Attorney might have been ethically obligated to delay withdrawal to allow client a reasonable time to find other counsel, but here the client accepted attorney’s withdrawal the next day. The malpractice suit filed more than a year after the client’s acceptance of attorney’s withdrawal was filed too late and was properly dismissed. Attorney was entitled to an attorney fee award on successfully defending a malpractice action. The attorney’s retainer agreement contained a provision allowing the prevailing party to recover fees in any dispute between client and attorney. That language was broad enough to cover tort claims. Contrary to the client’s argument, the attorney fee provision would apply even if only tort claims had been alleged. Moreover, the client’s malpractice claim sounded in both tort and contract, so it was clearly covered by the attorney fee provision.
California Court of Appeal, Second District, Division 6 (Yegan, Acting P.J.); October 12, 2016; 2016 WL 5929908