It's human nature to procrastinate. But I always tell my students that this can be a fatal flaw once you're an attorney. Even though we constantly wait until the last minute to file complaints, answers, motions, etc., my consistent advice is to not wait until the last minute unless there's a good reason to do so. Otherwise you may well find yourself in trouble and/or committing malpractice.
Like here.
The facts are simple. Client retains Law Firm -- SoCal IP Law Group (see cartoon characters here) -- to file patent applications. Law Firm nonetheless fails to file patent applications in Japan and Brazil, and Law Firm allegedly "admitted . . . that it was negligent” in failing to do so.
So, not surprisingly, Client decides to sue Law Firm for malpractice.
Client hires a new attorney to prosecute this claim, and does so in September of 2012. On November 5, 2012, Client (through the new attorney) sends Law Firm a fax saying that it's making a malpractice claim against it and telling it to advise its insurer accordingly. Two days later, on November 7, Law Firm sends an e-mail to Client saying that, in light of the malpractice claim, it must withdraw as Client's counsel, and says: "Consequently, the firm's
attorney-client relationship with [client] is terminated forthwith, and we no longer
represent [it] with regard to any matters.”
Then, the next day, November 8, Client tells Law Firm to deliver all its files to its new patent firm. A week later, on November 15, Law Firm sends an e-mail saying: "“Pursuant to your request, this will confirm that we have terminated the attorney client relationship with you. . . . [W]e are no longer representing you with regard to your patent
matters. As requested, we are transferring your files to Lucas Wenthe of Armstrong
Teasdale, LLP.”
Client does, in fact, eventually file suit against Law Firm. On November 14, 2013.
There's a one-year statute of limitations. Why November 14, rather than November 6 (or, for that matter, November 4)?! Sure, there's an argument that Law Firm didn't withdraw -- and hence start the limitations clock -- until its November 15 e-mail. But there's a better argument that the clock started on November 7, when the Law Firm expressly told Client that "Consequently, the firm's attorney-client relationship with [client] is terminated forthwith, and we no longer represent [it] with regard to any matters.” Much better, in fact.
But even if that was a worse argument, why wait the extra week? You've had a whole year to file the suit you knew you wanted to file. Why not file earlier? Why wait until what you think is the very last day?!
The short answer is: We don't know. As Justice Yegan puts it: "The record does not show why firm two waited until what it believed was
the 'eleventh hour' to file the malpractice action."
Regardless, in the end, the reason matters not. "We agree with the trial court that it
waited too long." The statute of limitation bars the lawsuit.
The only good news, I imagine, is that Client may potentially now have a new malpractice suit. This time against its second law firm. The one that waited until the very last day. (Or, as it turned out, a day that was after the very last day.)
So that's something, I guess.
If you really like suing lawyers. (As well as paying the $140,000 fee award that you had to pay to your former lawyers as a result of losing the first malpractice suit.)
