Delaware Superior Court Addresses Continuous Representation Doctrine in Legal Malpractice Case—But Was It Really Applied?

In what the court stated was a matter of first impression, the Delaware Superior Court applied the “continuous representation doctrine” in a legal malpractice case. In this case, the plaintiff claimed that his attorneys did not take any meaningful action to prosecute his underlying lawsuit and failed to sufficiently communicate with him. The court dismissed the underlying action sua sponte for failure to prosecute.

The plaintiff maintained he first learned that his underlying claims had been dismissed by the Superior Court 18 months after the dismissal. He then commenced his legal malpractice action more than three years after the dismissal. The defendant attorneys moved to dismiss the malpractice claims based on Delaware’s three-year statute of limitations, which, under the occurrence rule, began to accrue at the time of dismissal of the underlying action. The court held that the continuous representation doctrine was applicable because the “cause of action conceivably accrued at some point after the court dismissed the underlying suit” because the attorneys failed to take efforts to reopen the judgment.

It appears that the Delaware Superior Court has conflated the “continuous representation doctrine” with the concept of continued negligence. There are some jurisdictions that recognize the continuous representation doctrine, which provides that a legal malpractice cause of action accrues at the end of the underlying representation, irrespective of when the negligence occurred during the representation. Delaware, however, follows the “occurrence rule,” which, in the absence of equitable tolling, provides that a cause of action accrues at the time of the alleged negligence.

Here the court properly concluded that the cause of action could be deemed to have accrued after the dismissal of the underlying claims if the plaintiff could demonstrate continued negligence after the dismissal. The court’s use of the phrase “continuous representation doctrine,” however, could lead to confusion as to whether that doctrine is actually applicable in Delaware. The court entertained a motion for re-argument and issued a second opinion, where it made clear that the plaintiff’s claims were not time barred because of allegations of continued negligence. The second opinion did not reference the “continuous representation doctrine”; however, it did not specifically clarify that the doctrine was not applicable.