Smith v. Stacy
In Smith v. Stacy, 198 W. Va. 498, 482 S.E.2d 115 (1996), the Smiths retained attorney Stacy to represent them in the sale of a cemetery owned by the Smith family.
Stacy advised the Smiths to take certain actions that resulted in the Smiths being sued by a third party. Ultimately the Smiths sued Stacy for malpractice, but the lower court granted summary judgment for Stacy based upon the running of the statute of limitations.
The Smiths argued, in part, that because Stacy had continued to represent them after he malpracticed, that the statute of limitations had not run on their claim.
The Court agreed with the Smiths, and adopted what we call the continuous representation doctrine for attorney malpractice claims.
Specifically, the Court held:
"West Virginia adopts the continuous representation doctrine through which the statute of limitations in an attorney malpractice action is tolled until the professional relationship terminates with respect to the matter underlying the malpractice action."
The Court went on to explain that the continuous representation doctrine, "is designed, in part, to protect the integrity of the professional relationship by permitting the allegedly negligent attorney to attempt to remedy the effects of the malpractice and providing uninterrupted service to the client." 198 W. Va. at 503, 482 S.E.2d at 120.
Relying on a treatise to better explain the concept, the Court stated:
The purpose of the continuous representation rule is to avoid unnecessarily disrupting the attorney-client relationship. Adoption of the rule was a direct reaction to the illogical requirement of the occurrence rule, which compels clients to sue their attorneys although the relationship continues and there has not been and may never be any injury. The rule, limited to the context of continuous representation, also is consistent with the purpose of the statute of limitations, which is to prevent stale claims and enable the defendant to preserve evidence. When the attorney continues to represent the client in the subject matter in which the error has occurred, all such objectives are achieved and preserved. The attorney-client relationship is maintained and speculative malpractice litigation is avoided.
The rule of continuous representation is available and appropriate in those jurisdictions adopting the damage and discovery rules. The policy reasons are as compelling for allowing an attorney to continue efforts to remedy a bad result, even if some damages have occurred and even if the client is fully aware of the attorney's error. The doctrine is fair to all concerned parties. The attorney has the opportunity to remedy, avoid or establish that there was no error or attempt to mitigate the damages. The client is not forced to end the relationship, although the option exists. This result is consistent with any expressed policy basis for the statute of limitations. (Id., 198 W. Va. at 505, 482 S.E.2d at 122.)