I am still Roadshowing this week, among other things, so I will again offer some content but with a caveat about its brevity. (And, again, if you are sitting in a highly-entertained crowd looking for the embedded Spotify playlist just keep scrolling and you’ll find it.)
In the before time, the long, long-ago at this space (right before Xmas 2016 actually), I previously mentioned how Tennessee is a jurisdiction that does not toll the statute of limitations for legal malpractice actions based on the continuing representation of counsel. When I did so, I managed to offer a contradictory take from the “Hot List” folks in Tennessee in terms of predicting how the Tennessee Supreme Court would rule in the Story v. Bunstine case. (Admittedly though, I did flagrantly misspell Bunstine in the process back then.)
For the uninitiated, that whole “continuous representation” concept of tolling just means that the mere fact that a lawyer continues to represent a client does not mean that the client’s time frame for filing suit over alleged legal malpractice does not start running. For more than 20 years in Tennessee, the way we have dealt with the accrual of the cause of action involves application of the widely-familiar “discovery rule” approach.
For more than 20 years, our state has also operated under guidance providing that, if for some reason [for example, the potential that a mistake or misstep in the underlying action might be fixable and, thus, what seems like a very damaging outcome in the present could be the kind of situation in the future that everyone involved might laugh about] it is awkward to pursue the legal malpractice lawsuit while the lawyer is still trying to remedy the error, then the manner of addressing the situation is to file the legal malpractice action in a timely fashion (within 1 year of the problem) and ask the Court to stay that lawsuit until the underlying suit is completed.
Yesterday, the Tennessee Supreme Court ruled in Story v. Bunstine in which the plaintiff’s counsel explicitly asked the Court to undo that long-settled approach in favor of either the tolling for continuous representation or even the “appeal tolling” doctrine. I am happy to report in this space that the Court — in a very well-written and thorough opinion, rejected those calls for change and re-affirmed the status quo as to accrual of a cause of action for legal malpractice.
If I had to pick one portion to be the simplest portion of Justice Page’s opinion for the Court that drives home what matters, I’d go with this one:
Based on the foregoing, we conclude that our formulation of the discovery rule articulated in Carvell v. Bottoms, 900 S.W.2d 23 (Tenn. 1995), and again in John Kohl &
Co. P.C. v. Dearborn & Ewing, 977 S.W.2d 528 (Tenn. 1998), remains the appropriate analysis for determining when a claim of legal malpractice accrues. Accordingly, we decline to adopt the two tolling doctrines proposed by Plaintiffs—the continuing
representation rule and the appeal-tolling doctrine—and also decline to hold that a final judgment is required before there is an actual injury for purposes of accrual.
You can read the full opinion, should you so desire, at the link set out above.