Thought Leadership

Key Points:

• Pennsylvania Supreme Court refused to adopt the continuous representation rule to toll the statute of limitations in a legal malpractice action.
• Statutes of limitations are legislative in character and consideration of tolling doctrines, such as the continuous representation rule, is most appropriately viewed as an exercise in statutory construction.
• By refusing to adopt a different rule for legal malpractice cases, this decision has strengthened the public policy of prompt claim resolution and eliminated the prospect of a lawyer's indefinite liability for stale claims.

On December 22, 2020, the Pennsylvania Supreme Court issued an opinion in Clark v. Stover, _ A.3d _, 2020 WL 7502334 (Pa. Dec. 22, 2020), in which it refused to adopt the continuous representation rule to toll the statute of limitations in a legal malpractice action. Under the continuous representation rule, the applicable statute of limitations would not begin to run until the date on which the attorney-client relationship is terminated. Edwin Schwartz and Nicole Ehrhart, shareholders in our Professional Liability Department, litigated the case at the trial court level, and Kimberly A. Boyer-Cohen, special counsel in our Appellate Advocacy and Post-Trial Practice Group, was successful in defending that result before the Pennsylvania Supreme Court.

David Clark brought claims of professional negligence and breach of contract against Jeffrey Stover, Esquire, and his law firm. Mr. Stover had represented Mr. Clark in an underlying estate dispute in which Mr. Clark sought to contest the will of his deceased brother. Mr. Clark's claims in the underlying action were dismissed on November 10, 2009, and he admittedly learned of their dismissal within one week of the order. Mr. Stover subsequently appealed the decision in the underlying action on Mr. Clark's behalf, but the trial court's dismissal of the claims was affirmed on May 19, 2011, and allocatur was denied on May 16, 2012.

Mr. Clark did not commence his action against Mr. Stover and his law firm until October 1, 2015, at which time he alleged that Mr. Stover had failed to adequately prosecute the underlying action on his behalf. Upon Mr. Stover's motion, the common pleas court awarded summary judgment in favor of the defendants on the basis that the claims were untimely and barred by the applicable statutes of limitations. In doing so, the trial court found that Mr. Clark was aware of the alleged negligence and the asserted breach more than four years before filing the malpractice action such that the discovery rule and fraudulent concealment doctrine did not apply.

On appeal, the Superior Court affirmed. The Superior Court also addressed Mr. Clark's request for adoption of the continuous representation rule to permit statutes of limitations for causes of action sounding in legal malpractice to be tolled until the attorney’s ongoing representation is complete. In rejecting Mr. Clark's request, the Superior court explained that it was bound by its previous rejection of the continuous representation rule in Glenbrook Leasing Co. v. Beausang, 839 A.2d 437, 442 (Pa. Super. 2003), aff’d per curiam, 881 A.2d 1266 (Pa. 2005).

The Pennsylvania Supreme Court subsequently allowed discretionary appeal solely to consider whether to adopt the continuous representation rule. On appeal, Mr. Clark argued that strong policy justifications support the rule's implementation, including the client's entitlement to repose confidence in a lawyer's abilities, avoidance of disruption of attorney-client relationships and providing the opportunity for lawyers to cure mistakes before being sued. Mr. Clark also argued the continuous representation rule was favored by a majority of other jurisdictions.

In response, Mr. Stover argued that adoption of the continuous representation rule would adversely impact the purpose of the statute of limitations—"to expedite litigation and thus discourage delay and the presentation of stale claims which may greatly prejudice the defense of such claims." With regard to policy, Mr. Stover explained that the longer four-year statute of limitations which applies to legal malpractice claims sounding in contract, as well as the discovery rule and the fraudulent concealment doctrine, already provides substantial protections to plaintiffs. Furthermore, application of the continuous representation rule would also serve as a disincentive for lawyers to remain involved in matters to attempt to remediate difficulties which may arise during the course of legal representation. Finally, Mr. Stover highlighted that the rejection or refusal to adopt the continuous representation doctrine is in keeping with the approach of many other jurisdictions and pointed out that, of the jurisdictions that apply a continuous representation approach, several limit the application to instances in which the plaintiff/client lacks knowledge of the alleged malpractice prior to the termination of the attorney-client relationship.

The Pennsylvania Supreme Court agreed with Mr. Stover’s position. The court reasoned that statutes of limitations are legislative in character and that consideration of tolling doctrines, such as the continuous representation rule, is most appropriately viewed as an exercise in statutory construction. Notably, however, the Pennsylvania Supreme Court found that Mr. Clark's argument was entirely policy-driven and that he pointed to nothing in the relevant statutes that would militate in favor of application of a continuous representation approach. The Pennsylvania Supreme Court concluded that the appropriate balance should be determined by the General Assembly and affirmed the dismissal of Mr. Clark's legal malpractice claims.

By refusing to adopt a different rule for legal malpractice cases, the decision in Clark has bolstered the public policy of prompt claim resolution and eliminated the prospect of a lawyer's indefinite liability for stale claims. As has historically been the case, the statutory period for a legal malpractice cause of action commences upon the happening of the alleged breach of duty and may only be tolled, in appropriate cases, by the discovery rule or the fraudulent concealment doctrine. The Pennsylvania Supreme Court's holding in Clark confirms the long-standing rejection of the continuous representation rule in the Commonwealth and makes clear that attorneys will not be subjected to a more stringent statute of limitations than other professionals.

*Ed is a shareholder in our Harrisburg, Pennsylvania office and can be reached at (717) 651-3700 or easchwartz@mdwcg.com. Kim is special counsel in our Philadelphia, Pennsylvania office. She can be reached at (215) 575-2707 or kaboyer-cohen@mdwcg.com. Nicole, a shareholder, works in our Harrisburg office and can be reached at (717) 651-3512 or nmehrhart@mdwcg.com.

_{Defense Digest, Vol. 27, No. 1, January 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}