Imagine the following situation. John Doe hires an attorney to represent him in a case where the plaintiff claims that he breached a contract. Like many lawsuits, this particular case gets dragged out for over three years. Early in the lawsuit, and without Doe’s knowledge, Doe’s attorney commits malpractice by failing to allege an affirmative defense. Doe learns of the mistake only when he loses at trial and a judgment is entered against him.
Doe is furious with his attorney and wishes to file a malpractice lawsuit. However, the statute of limitations for any negligence claim is three years. The three-year statute of limitations begins to accrue at the time Doe’s attorney committed negligence, i.e., failing to assert an affirmative defense. Is Doe out of luck? According to Division II of the Washington Court of Appeals, no.
In Hipple v. McFadden, Division II adopted the “Continuous Representative” rule, which tolls the three-year statute of limitation. As written by Division II:
The “continuous representation” rule 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.
In short, the three-year statute of limitation period for Doe begins to run when his attorney ceases to represent him in the underlying matter. Policy reasons behind the “Continuous Representation” rule include: (1) allowing the attorney to remedy the mistake in the underlying matter; and (2) preventing the attorney from defeating a malpractice claim by representing the client for three years.
Previously, the “Continuous Representation” rule was only recognized in Division I. With Division II adopting the rule in Hipple, Division III is the only Washington Court of Appeals not to have formally adopted the rule.