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Brunacini v. Kavanagh12/16/1993
2d 711, 715-16 (Kan. Ct. App. 1988); Greene v. Greene, 80 A.D.2d 55, 437 N.Y.S.2d 339, 341-42 (App. Div. 1981); Feudo v. Pavlik, 55 Ohio App. 3d 217, 563 N.E.2d 351, 352 (Ohio Ct. App. 1988); Hughes, 821 S.W.2d at 156. Several states have enacted legislation expressly codifying the continuous representation rule. See Mallen & Smith, supra, ยง 18.12, at 117. Mallen and Smith also observe:
The rule of continuous representation is equally available and appropriate in those jurisdictions adopting the damage and discovery rules. The policy reasons are as compelling for permitting an attorney to continue efforts to remedy a bad result, even if some damages have occurred and even if the client is fully aware of the attorney's error. The doctrine is fair to all concerned parties.
Id. at 115.
We assume, but do not decide, that the continuous representation rule is
applicable in New Mexico. In the present case, however, the rule does not aid Plaintiffs. After Plaintiffs were served with the Law Firm's complaint in its action to recover its legal fees, Plaintiffs retained a new attorney to handle the appeal of the employment contract case and to represent them in the suit for legal fees. Thus, when plaintiffs filed their answer to the Law Firm's suit for legal fees, their claim for legal malpractice had fully accrued. Plaintiffs' failure to assert such cause of action as a compulsory counterclaim under SCRA 1-013(A) barred the subsequent filing of the malpractice claim in the present action. See also Law Offices of Jerris Leonard, 111 F.R.D. at 361 (failure to file compulsory counterclaim for legal malpractice in attorney's action for legal fees bars later assertion of malpractice claim); B.J. Howard Corp. v. Skinner, Wilson, Strickland, Hardy & Benson, 172 Ga. App. 446, 323 S.E.2d 664, 665 (Ga. Ct. App. 1984) (malpractice claim relating to law firm's representation of plaintiff held to constitute compulsory counterclaim in action for legal fees).
Conclusion
The order denying the Law Firm's motion to dismiss is reversed, and the cause is remanded for entry of an order dismissing Plaintiffs' complaint.
IT IS SO ORDERED.
THOMAS A. DONNELLY, Judge
WE CONCUR:
BRUCE D. BLACK, Judge
BENNY E. FLORES, Judge
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