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Sharts v. Natelson6/30/1993
certain. See Grunwald, 621 A.2d at 465; Mallen & Smith, supra, § 18.11, at 105 & (3d ed. Supp. 1992), at 22; cf. ), cert. denied, 113 N.M. 352, 826 P.2d 573 (1992) (similar rule in workers' compensation context).
2. Under the Continuous Representation Rule?
Second, Sharts contends that discoverability of his cause of action was delayed by his reliance on Natelson as his attorney, and therefore the malpractice cause of action was not discoverable and ascertainable until Sharts' new counsel filed his entry of appearance on July 10, 1985, exactly four years prior to the time that Sharts filed his complaint against Natelson. As I understand Judge Apodaca's opinion, this is the one issue on which he and I differ.
I would reject Sharts' argument on this point on both the facts and the law. Even adopting Sharts' view of the law, the undisputed facts in the record establish that Sharts acquired new counsel prior to July 10, 1985. On June 20, 1935, the district court in the declaratory judgment action had entered an order halting Natelson's representation of Sharts in the case and requiring Sharts to secure new counsel within 15 days. Sharts' new attorney entered an appearance in court on July 10, 1985. At his deposition Sharts answered "Yes" when asked, "And seeing that Mr. Marlowe noted his entry as your attorney in court on July 10, 1985, you can be sure, can you not, that you had engaged him to represent you some days before that?"
More importantly, I disagree with Sharts' view that the pertinent date is when Sharts obtained new counsel, as opposed to the date that Natelson stopped representing Sharts on the matter. A number of courts have adopted the rule that a client's cause of action for attorney malpractice does not accrue during the time that the attorney continues to represent the client on the subject matter of the malpractice action. See Mallen & Smith, supra, § 18.12. The rule is generally referred to as the "continuous representation rule." See id. "The purpose of the continuous representation rule is to avoid unnecessarily disrupting the attorney-client relationship." Id. at 115. The purpose disappears when the representation ends. See Glamm v. Allen, 57 N.Y.2d 87, 439 N.E.2d 390, 393, 453 N.Y.S.2d 674 (N.Y. 1982). Often, of course, the ending of representation by one attorney and the commencement of representation by another attorney are virtually simultaneous. But when they are not, it follows from the rationale for the continuous representation rule that the limitations period is not further delayed once the original attorney stops representing the client. See Laird v. Blacker, 828 P.2d at 693 n.3 (California's codification of continuous representation rule tolls limitation period until attorney no longer represents plaintiff); cf. Hensley v. Caietti, 13 Cal. App. 4th 1165, 16 Cal. Rptr. 2d 837 (1993) (tolling under continuous representation rule ended when plaintiff obtained new counsel, although defendant attorney not yet discharged). "An attorney's services are discontinued, for purposes of the statute of limitations, when the client or the court discharges the attorney." Hooper v. Lewis, 191 Mich. App. 312, 477 N.W.2d 114, 116 (Mich. Ct. App. 1991) (applying Michigan statute). Thus, in this case any tolling under the continuous representation rule terminated by June 20, 1985, the date of the court order halting Natelson's representation of Sharts.
Sharts contends that he could not discover his cause of action while Natelson was representing him because of Natelson's influence over Sharts, at least with respect to this matter. That obstacle to discovery ended, however, when the district court ordered Natelson to stop representing Sh
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