Attorneys – Legal Malpractice – Tort/Contract – Limitations

An Alexandria U.S. District Court denies defendant law firm’s motion to dismiss as time-barred plaintiff’s claims alleging legal malpractice; at this stage of the litigation, the court will not dismiss a complaint based on the affirmative defense of the statute of limitations where all the necessary facts about the “particular undertaking” at issue do not “clearly appear” on its face.

At this time, the court does not know the details of the oral agreement. At issue is precisely when defendants’ representation of plaintiffs ended, thus starting the running of the statute of limitations under the continuous representation doctrine. An affirmative defense may be reached by a Rule 12(b)(6) motion to dismiss only if all facts necessary to the affirmative defense clearly appear on the face of the complaint. Such is not the case here.

The proper inquiry for this court is not whether a general attorney-client relationship has ended, but instead, when the attorney’s work on the particular undertaking at issue has ceased.

Plaintiffs argue the “undertaking” here included protecting Touchcom’s invention both inside and outside Canada through a series of patents, including but not limited to a U.S. patent. Defendants argue that the “undertaking” was no more than the securing of the U.S. patent, which was completed on June 25, 1991.

There is not a written agreement regarding the scope of defendants’ patent representation of plaintiffs with regard to the invention. There is an oral agreement between the parties that initially defines the “scope of the undertaking.” In addition to the original oral agreement, the 1989 Declaration given by Hollidge “included a power of attorney appointing [attorney H. Samuel] Frost, defendant law firm Berreskin & Parr, and various other B&P attorneys and agents” as Touchcom’s agents to “prosecute this … application and transact all business in the Patent and Trademark Office connected therewith,” and this power of attorney was never withdrawn. Accepting as true the factual allegations in the second amended complaint, viewed in the light most favorable to plaintiff, it is not clearly established that the “particular undertaking” at issue was limited to the issuance of the ‘282 patent. On the facts as plead, defendants were called on to give attention to the invention and its various patents, including the ‘282 patent, well after the ‘282 patent had issued.

Touchcom Inc. v. Berreskin & Parr (Cacheris, J.) No. 1:0cv0114, Feb. 12, 2010; USDC at Alexandria, Va. VLW 010-3-067, 15 pp.