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Effectively Terminating the Attorney-Client Relationship: Local Rules Do Not ControlPDF
By Melvin Davis
Throughout the legal profession, it is well-known that legal malpractice claims in Ohio must be commenced within one year after the cause of action accrued. It is similarly well-known that determining when a cause of action accrues is often a tricky question. Sure, we know that there is a two-part test to determine when a claim for legal malpractice accrues, but we also know this test is not clear-cut.
Technically, a malpractice claim accrues on the latter date of when (1) the client should have known that he or she may have been injured by their attorney; or (2) the attorney-client relationship terminates. Zimmie v. Calfee, Halter & Griswold (1989), 43 Ohio St. 3d 54. An article dissecting the first part of the test, known as the “discovery rule,” could fill volumes, so let’s focus on the termination of the attorney-client relationship.
Many trial courts have adopted local rules regarding attorney withdrawal. A common belief is that the attorney-client relationship is terminated on the date a court grants an attorney’s motion to withdraw. Not true.
In Smith v. Conley, the Supreme Court of Ohio dispelled this notion by holding that local rules relating to withdrawal of counsel are administrative in nature but not controlling of the attorney-client relationship. Smith, 109 Ohio St. 3d 141, 2006-Ohio-2035, ¶9. Recently, this principle was reiterated and determined to be equally applicable to the local rules of federal courts. Felix v. Gerth Law Office, LLC, 2018-Ohio-3133 (10th Dist.).
In Felix v. Gerth Law Office, LLC, an attorney sent a letter on June 3, 2015, notifying clients that his representation of them in a Chapter 7 bankruptcy had “reached its termination.” Felix, 2018-Ohio-3133, ¶3. On that date, the attorney also filed a motion to withdraw with the bankruptcy court. Id. at ¶3. On July 16, 2015, the bankruptcy court granted the motion for withdrawal.
On July 13, 2016, a malpractice claim was filed against the attorney. The former clients contended that the attorney-client relationship terminated on July 16, 2015—the date the motion for withdrawal was granted. Id. at ¶4. In support of this contention, the former clients relied upon the local bankruptcy rule, which required attorneys to obtain permission from the court prior to withdrawing from representation. Id. at ¶12. The former clients further relied upon Professional Rule of Conduct 1.16(c), which states, in part: “if permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.” Id., FN2 (Emphasis sic.).
Nevertheless, despite the local bankruptcy rule and the Professional Rule of Conduct, the court held that the statute of limitations accrued when the attorney notified the former clients that the attorney-client relationship was terminated—not the date the motion for withdrawal was granted. Id.at ¶12. Applying Smith v. Conley, the court noted that attorneys are still required to follow local rules and must file the appropriate motion with a court to withdraw from representation, but the date of termination of the attorney-client relationship for purposes of the statute of limitations is determined by the conduct of the parties—not the local rules. Id. at ¶14.
With this admonition, practitioners should be mindful that compliance with local rules remains mandatory. But practitioners should not rely upon local rules to dictate the termination of an attorney-client relationship. Instead, as a matter of good practice, practitioners should provide clients with written notification expressly terminating the attorney-client relationship. Once written notification is provided, practitioners should cease legal services, unless doing so is necessary to protect the client from deadlines and court dates. In the unfortunate event that a malpractice claim is filed, the date that written notification was provided combined with the cessation of legal services will dictate the accrual date of the claim for purposes of the statute of limitations.