Awesome post. Except for the part that isn’t.

There is an awful lot to like and agree with in this post from Dan Lear, one of the folks who have been the face of Avvo for quite some time.  But there is a piece of it that is just simply wrong, and while it would be hyperbole to say it is dangerously wrong, it certainly is wrong in a way that lawyers don’t need to have reinforced.  Lear writes:

Do the RPCs apply when an attorney isn’t working as a lawyer? First, bar associations don’t regulate endeavors that aren’t the practice of law, especially awesome ones. While a lawyer may choose to apply the RPCs outside of the practice of law, the bar doesn’t regulate lawyers as a landlord, an expert witness, or even a restaurant owner.

Even understanding the larger point Lear is attempting to make, this is utterly and simply wrong.  ABA Model Rule 8.4 – with language that is tracked in I believe pretty much every U.S. jurisdiction — does not limit itself to situations in which a lawyer is only representing a client and also does not draw a bright line around a lawyer “being a lawyer,”

The easiest, and most obvious, part of the rule that makes the point is RPC 8.4(b) which gets lawyers in ethical trouble for certain criminal acts even having nothing to do with, or not happening while, they are working as a lawyer.

But there are two other, more broadly problematic ways that RPC 8.4 does extend to, and actually govern, the conduct of people who happen to also be lawyers while they are doing things that they don’t think of as working as a lawyer know matter how much they may subjectively think they are being “awesome.”

Those two other pieces are RPC 8.4(a) and (c).  When combined those pieces of the rule read:

It is professional misconduct for a lawyer to . . .

(a) violate or attempt to violate [the ethics rules], knowingly assist or induce another to do so, or do so through the acts of another . . . [or]

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation….

I’ve often joked about 8.4(c) as being the only ethics rule in the books that has to mean something other than what it actually says because, as written, it would make it professional misconduct for me to answer questions from children about Christmas presents or bluff while playing poker or dive to get a call while playing over-35 soccer on Monday nights.  I’ve also, once before and also in response to something written by a lawyer more famous than I, advocated that it shouldn’t apply to a lawyer operating a parody account on social media.   But there are aspects of how that rule truly does apply to dishonesty by lawyers, even when not acting as lawyers, which are quite serious.  Easy examples from the recent past involve deans and others affiliated with administrative positions at law schools lying about statistics to improve enrollment numbers and the like.

And, perhaps the most perplexing and concerning of the examples Lear offers of things a lawyer could do where they wouldn’t be bound by the ethics rules is serving as an expert witness.  I’ve been fortunate enough to serve as an expert on more than a handful of occasions in my career, and, suffice it to say, RPC 8.4 is not the only ethics rule that will still apply to the lawyer when serving in that capacity.

The intersection of the First Amendment and the Ethics Rules

So, I don’t know if any of you have ever played HQ Trivia.  In any session, they have between 500,000 and almost 2 million players, so statistically speaking, I guess there is a chance you have.  While it has nothing to do with legal ethics, in order to understand the context of what follows, let me give you a quick primer.

It is something that would have been 5 years ago the stuff of science fiction or an even an episode of Black Mirror.  It is an app on your phone through which you can play trivia in real-time answering questions read by a human being host.  Each question is presented with three multiple-choice answers and you have 10 seconds from when the host starts reading the question to click your answer.  If you answer correctly, you get to move on to the next question.  If you don’t, you are eliminated.  In the standard format, the quiz consists of 12 questions and, if you answer all the questions correctly, you win or split the pot with any other players who have done so.  (When the largest pots are offered they increase the number of questions to 15 or, quite recently, they have experimented with as many questions as is necessary to narrow down to just winner in a winner-take-all format.)

The dollar amount of the prize varies.  It is typically $2,500 but, as it appears they are closer to whatever plan they have in place for monetizing the app approaches, they have recently offered a pot as large as $100,0o0.  Reportedly, tonight they will be offering a $250,000 pot.  I have won the game on one occasion and, of course, when I did there were so many other winners that my share came to just shy of $2.  (I also know there are other companies doing similar games and some of those are competing against HQ on the basis of how awful one particular financial backer of HQ reportedly is, so I’m not going to link or provide publicity to the game, but it is the one I play [for better or worse] so if you decide to sign up for it and put in my user name – bsfaughnan- as a referral code then I will get some extra lives.)

Now all that is background for today’s topic – which is the intersection and overlap of the ethics rules and what they prohibit members of our profession from doing and the First Amendment.  This topic is frequently one I spend time thinking about because for many years my practice has also involved representing clients on First Amendment issues and, in fact, though I continue to not be listed in Best Lawyerfor Legal Ethics and Professional Responsibility, in addition to being listed for Appellate Law, I am listed for Litigation-First Amendment.  It is also a topic that I have been thinkng about frequently because of various events that have worked their way into my line of sight either directly or indirectly.  Those three events are: (1) the outpouring of comments from particular portions of the bar in Tennessee arguing that the proposed RPC 8.4(g) in Tennessee is an assault on their First Amendment rights; (2) the latest post from Avvo’s GC criticizing ABA Formal Op. 480; and (3) the head of a prominent law firm speaking out publicly to indicate that a star lawyer of his firm turned down the opportunity to represent the current occupant of The White House.

So, here’s the HQ-style question and, remember, there is only one correct answer.  You won’t be limited to 10 seconds to answer from the time you start reading the question however:

Which of these presents the most compelling case for finding that discipline against a lawyer would violate the lawyer’s First Amendment rights?

  • A lawyer tweets – without client permission – about a jury verdict she obtained in order to advertise the successful outcome.
  • A lawyer, during a CLE or bar association social event, decides to lecture everyone in the room about why he considers marriage between two persons of the same gender to be an abomination.
  • A lawyer, consulted by a politician who she finds to be vile, or have views she finds to be vile, holds a press conference or tweets that she refused to represent that politician because she disagrees with everything he stands for.

 

 

Outside counsel guidelines and term limits

While I am on something of a short streak of writing about people much more famous and influential than I am, it seems as good a time as any to offer my thoughts about the article that two very fine lawyers with Hinshaw & Culbertson wrote for The Professional Lawyer in 2017 about even more aspects of the growing problems outside counsel guidelines are creating for lawyers in private practice.  (These same two authors did an earlier article that talked about the problems with indemnity provisions in such guidelines – you can go read that here if you’d like.)  The more recent article was titled The New Battle Over Conflicts of Interest: Should Professional Regulators–or Clients–Decide What is a Conflict?

If you don’t know the article of which I speak, or it has been a while since you read it, you can go read it (again) here.

It is difficult to contest the point being made by the authors in this article, and the earlier one, that increasingly frequent provisions in OCGs are creating real problems for lawyers in private practice.  Particularly so, those pieces of OCGs that feel like they are overreaching related to who must be treated as clients for purposes of determining conflicts.

The authors summarize the nature of these issues quite well as involving clients using OCGs to “expand[] the definition of who is the client (far beyond the bounds of prevailing case law);” “limit[] the universe of other clients from whom lawyers and their firms may accept work;” and to “expand[] the definition of ‘interest’ and ‘positional’ conflicts in order to prevent lawyers and firms from undertaking or continuing to work for other clients that may take public positions on issues that the client unilaterally—and often ex post facto—deems adverse to its own interests.”

What I do disagree with, however, is the authors’ proposal for how to fix this problem.  The authors propose that states amend their versions of Model Rule 5.6 to make it unethical for lawyers to propose or agree to restrictions on their right to practice in connection with being hired by a client, just as is now the case for employment agreements or as terms for resolving a client’s matter.

Under the proposed revision, Rule 5.6 would read as follows (the bold and italicized piece being the new stuff):

A lawyer shall not participate in offering or making:

(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement
concerning benefits upon retirement; or

(b) an agreement in which a restriction on the lawyer’s right to practice is part of the terms of engagement of a lawyer by a client or of the settlement of a client controversy.

My immediate reaction to reading that proposal was to think of the problems I have whenever people argue for imposing term limits on their elected representatives.  You get the opportunity to vote people out every time they come up for re-election.  You shouldn’t need a law that limits the number of terms they can serve because you can always simply just vote them out of office in the regular course of things.

The solution to overreaching in outside counsel guidelines is equally simple: lawyers and firms should reject OCGs that go too far and refuse to agree to terms that unreasonably define who must be treated as the client or that become tantamount to restrictions on the right to practice.

The counterargument for that position is about the same as the counter-argument when the discussion involves term limits — the deck is typically too stacked in favor of incumbents so that the balance of power is truly off and that simply saying “you can vote them out” is naive.

The nature of present day demands on lawyers and law firms means that most firms and lawyers won’t be willing enough to turn work away to push back on outside counsel guidelines that are unreasonable and amount to overreaching.  Any firm that really wants to take a stand will have too much economic pressure on it to do so.  I hear the point, but, while that might be a pretty bad basis for enacting term limits and preventing some truly effective politicians from serving for as long as their constituents might like, it’s an extraordinarily bad basis for revising an ethics rule.

In particular, it is a bad basis for revising an ethics rule when there are already one or more ethics rules that lawyers can point to as being breached by aspects of the very OCGs being complained about.  For example, the authors point out that OCGs, in order to enforce their expansive requirements about what is a conflict, also impose obligations on the lawyer to tell the client about matters they are contemplating undertaking.  In so doing, these OCGs are demanding that lawyers agree to disclose information that they are obligated to treat as confidential under RPC 1.18 (assuming they have that provision in their state).

A lawyer who wants to refuse to agree to outside counsel guidelines of that type would have a strong, persuasive argument to offer not only about that violation but the potential risk that an in-house lawyer would have – if insisting that it remain in the agreement – of being considered to have violated their state’s version of Model Rule 8.4(a) which, in most places, makes it a disciplinary violation for a lawyer to “knowingly … induce” another lawyer to violate the ethics rules.

It also seems to me be a bridge too far for lawyers and firm to be able to demand that clients be permitted to agree to advance conflict waivers and similar contractual provisions which would serve to narrow the scope of conflicts but also demand that clients should not be able to propose that the lawyer agree to treat requirements of conflicts even more broadly.

The authors also offer an alternative to their own proposed revised language – perhaps to avoid issues associated with when a restriction would be made a term of engagement or not, by suggesting that Rule 5.6 could otherwise be revised simply in (b) to prohibit “an agreement containing a restriction on the lawyer’s right to practice.”  There would be significant problems — perhaps in the nature of unintended consequences – that would come from that alternate revised Rule 5.6 proposal.

If someone is being hired as an in-house lawyer, their corporate employer should be permitted to require that they restrict their practice to only representing the corporate employer and not represent any other clients while employed in-house.  Technically speaking, the second version of the revised Rule 5.6 wouldn’t permit that.  And, even if you are a private practice lawyer and one client wants to provide you with enough work that they also want to have you agree that you won’t work on any other matters for any other clients, why shouldn’t that be okay?

There are examples out there of such lawyers other than just Tom Hagen, the lawyer in The Godfather.

And, coincidentally, Hagen’s also a pretty good example of a lawyer who should have simply turned down a proposed client engagement rather than allowing economic benefits to sway his decision.

 

EVA(n) good things are complicated by ethical obligations.

So, this week’s biggest news in terms of the role of artificial intelligence in the practice of law is the rollout of a new, free AI product from ROSS Intelligence.  The product is called EVA, and you can read all about it here.

The short version of it is that when the other side files a brief in your lawsuit, you can upload the brief and EVA will analyze the cases being relied upon, alert you to other cases where those cases have been negatively treated, and point you to other relevant cases to fast track your research efforts.

It sounds great, and it probably is great.  But, me being me, I immediately started thinking about questions such as:

Will ROSS, through EVA, be keeping all of the data that is uploaded to it?

What are the terms and conditions lawyers have to agree to in order to use EVA?

Will those lawyers need their client’s permission to upload such documents into the EVA platform?

Here is a link to those terms and conditions so you can read them yourself should you be so inclined (at that link, you will need to click on the link titled Terms of Use to get those to popup on your screen), but I think the short version is that, almost always, a lawyer can safely make the decision to upload the other side’s brief into EVA without even talking to your client by relying upon the authority provided under Rule 1.6(a) to say that doing so is impliedly authorized in order to carry out the representation of your client.

It is, of course, interesting that what you are uploading is actually the work product of the other side and that the terms and conditions require you to say that you have all the necessary ownership rights to send the document through the EVA service.  Along those lines, I would imagine the weird instances of counsel attempting to claim trademark rights in briefs they file could complicate usage issues.  More realistically though, cases that are operating under protective orders and where briefs are filed under seal would seem to be the one area where lawyers could get themselves into trouble by using the free EVA service.

TIKD off my list.

Some day I’m going to get tired of having pun with TIKD titles, and you’ve probably already gotten tired of me doing it, but today is not that day for me.  I was looking to find something to be able to easily write about today before scrambling out of town for some speaking engagements and meetings and Roy Simon has come through for me again.  Roy kindly pointed me this morning to the latest development in the saga down in Florida over the traffic ticket app, TIKD, and its fight with the Florida Bar.

If you are not a Law360 subscriber, you can only read part of the story at this link.  Roy was kind enough to send me the full article, so I’ll summarize the key points of the development for you and then leave you with the only potentially relevant thought I can manage today.

The story explains that the Florida Supreme Court has issued a show cause order to TIKD to require it to respond to the Florida Bar’s petition over UPL allegations and to show cause why the Florida Supreme Court should not enter an order barring its services.

The article contains a very confident sounding quote from the owner of TIKD, likely more confident than he should be under the circumstances that reads as follows:

“What a stunning waste of time and resources,” Riley said. “For nearly a year we have been asking the bar to tell us what aspects of our business they find objectionable, so we could work to address
their concerns. Rather than having a conversation, they chose this route and now have filed a vague complaint, lacking any basis in case law.”

“Nonetheless, we’re glad the issue is out of the bar’s hands, and into a realm where actual facts matter. We remain confident Tikd and its affiliated lawyers are fully in compliance with Florida law,
and are hopeful we can finally resolve this and move on,” he added.

I remain skeptical that TIKD itself is truly engaged in the unauthorized practice of law, though I suspect the Florida Supreme Court may find otherwise.  I’m as confident as Mr. Riley sounds above that what they are is a referral service that violates the current version of the Florida Bar’s ethics rules and that lawyers doing business with TIKD simply cannot do so and comply with the current Florida rules.

I’ve written in the past about my thoughts in general about being open to taking hard looks at revising existing ethics rules that touch on these issues, but for now the rules say what they say.

What I’m puzzling over is this:  is there a way of describing what this traffic ticket app company does that is sufficiently analogous enough to what insurance companies do to justify its existence even under current ethics rules?

At some level, isn’t what this company is offering in the equivalent of ticket insurance without a deductible?  They select the lawyer to represent you, they pay the lawyer to represent you, and if a “judgment” goes down against you for which you are liable – a fine for violation of the traffic laws — they pay it.

If we let insurance companies do something very much like that, then what’s the difference here?

Change is hard. Even where it appears to be wanted.

I have been meaning to do this and am long overdue in getting to it, but you might recall back in the summer of 2017 when I wrote pretty extensively about the contents of the Oregon Futures Task Force Report, and its positive proposed changes to the ethics rules.  If you don’t, you can read those posts here and here.

In November 2017, the chair of the Legal Ethics Committee in Oregon who also was a member of the Futures Task Force was kind enough to drop me a line and update on how those proposed rules revisions were progressing.

Initially the Board of Governors of the Oregon State Bar approved the proposed revisions to RPC 5.4, 7.2, and 7.3 for discussion and voting by its House of Delegates.

After the process in the House of Delegates, in which there was quite a significant amount of debate and discussion as I am told, the proposed revisions to RPC 5.4 and 7.2 were referred back to the Board of Governors to a study committee, but the proposed revision to RPC 7.3 was passed and has been submitted to the Oregon Supreme Court so it can decide whether to adopt it or not.

While in my prior postings I discussed the RPC 5.4 proposed revision at some length, I did not provide any real detail of the RPC 7.3 change Oregon was considering beyond the fact that it would involve allowing in-person or real-time electronic solicitation, with limited exceptions.  For the record, this is what the Oregon Supreme Court now has in front of it for consideration:

RULE 7.3 SOLICITATION OF CLIENTS
A lawyer shall not solicit professional employment by any means if:

(a) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person who is the target of the solicitation is such that the person could not exercise reasonable judgment in employing a lawyer;
(b) the [person who is the] target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or
(c) the solicitation involves coercion, duress or harassment.

Now, you know what I know on this topic.

 

So what does 2018 hold in store for us?

It’s a new year and, of course, for many that means a time of reflection and goal-setting and much talk of how the new year will be different from the prior year.

I will spare you much of that because you can find that all over the Internet.  I am prompted to post today (in addition to just wanting to get back on the horse after the holiday break) because there has been some news today of note that tends to demonstrate that 2018 is likely going to be a lot like 2017 in terms of what matters and must be discussed.

Today, The Florida Bar and a marketplace technology company, Legal.io, announced a partnership in order to modernize The Florida Bar’s Florida Lawyer Referral Service.  You can read the announcement here.

There are a multitude of reasons why this step in Florida could matter greatly — particularly if it is successful — because other bar associations might follow suit (if such endeavors are not already in the works).  The key seems to be whether any action like this is too late to gain traction with consumers who are already turning to other, similar for-profit endeavors.  I have little doubt that lawyers will be more comfortable with such arrangements because of the safety involved with not having to worry about ethics issues of fee sharing or improper payments for referrals if they can work through bar referral programs.  Florida is an interesting place for this to happen at this moment in time as well because one might expect this development could be raised in the TIKD antitrust litigation, for example, as more fodder for arguments of claimed collusive behavior in the marketplace for legal services by the bar.

And, along those lines (but sort of flipped 180 degrees), there was another development late last year that I haven’t mentioned but that will likely be significant for lawyers in 2018.  It is this lawsuit filed on the other coast against LegalZoom and a number of state bar associations (as well as the USPTO) that seeks $60 million in antitrust damages.  You can read a nice story about this suit filed in California federal court – and what the Plaintiff in it is really trying to accomplish — here.

In short, although the suit alleges that LegalZoom is engaged in unauthorized practice and competes in a way that is unfair to lawyers, and alleges that the USPTO, the California bar, the Texas bar, and the Arizona bar are somehow turning a blind-eye to the conduct to allow it to continue, the Plaintiff, an IP lawyer and entrepreneur named Raj V. Abhyanker, admits that what he’s really looking for is a court ruling that tells him that he, and other lawyers, can use the same business model as LegalZoom without fear of ethical ramifications.

So, you know, stay tuned.

A very good start.

My last post was filled with criticisms related to the roll out of a new ABA Ethics Opinion.  Today I’m offering a different tone and message for the ABA Standing Committee on Ethics and Professional Responsibility – a positive message offering kudos for the working draft that has now been circulated to revise the ABA Model Rules on advertising issues.

I’ve written a number of times in this space in the past about the push by APRL on this front and, although the working draft that has now been put out by ABA SCEPR does not entirely match APRL’s proposal, it adopts a significant amount of what that proposal sought to accomplish.

The working draft deletes Model Rules 7.5 and consolidates much of the regulation involved in that rules into Comments added to Model Rule 7.1.

It trims a little bit of fat from the Comment to Model Rule 7.2 and explicitly acknowledges the ability of lawyers to offer things akin to a “token of appreciation” to people who provide them with referrals and the like without violating the ethics rules.

It also removes a number of restrictions on solicitation by narrowing what is prohibited to interactions that can be described with the term “live person to person contact,” adding a new class of purchasers of legal services who can even be asked for their business live and in person, and leaving the overarching prohibitions against coercion, duress, or harassment as the line that cannot be crossed in any effort to develop business.

What constitutes “live person to person contact,” would be defined in the first two sentences of Comment [2] to the rule:

“Live person to person contact” means in person, face to face, telephone and real-time person to person communications such as Skype or Facetime, and other visual/auditory communications where the prospective client may feel obligated to speak with the lawyer.  Such person to person contact does not include chat rooms, text messages, or other written communications that recipients may easily disregard.

The new category of purchasers of legal services who would be fair game for even live person to person contact would be people “known by the lawyer to be an experienced user of the type of legal services involved for business matters.”

Model Rule 7.4 would be honed down to two provisions — one that permits lawyers to truthfully tell people what fields of law they practice in and one that prohibits lawyers from claiming to be certified as a specialist in any area of law unless the lawyer actually is so certified by an appropriate entity and the name of the entity is clear in the communication.

The APRL proposal would be an even more streamlined regulatory approach than what is being offered in the ABA SCEPR working draft in large part because the APRL proposal also would have deleted Model Rule 7.2 and 7.4 altogether and retained bits from the Comment to each of those rules that were worth retaining by relocating them to Rule 7.1.

Nevertheless, decrying this progress from the ABA SCEPR would be an exercise in letting the perfect become the enemy of the good.  And, at least one time in 2017, I am going to refrain from doing that.

Friday follow up, follow up: Sick of TIKD yet? If so, a promise of something new for next week

I know they warn people about going to wells too often, but though the Roadshow has now wrapped up your intrepid blogger is a bit exhausted.

So this is the well where we find ourselves today … a further mention of the ongoing TIKD situation.  It is both a selfish and an altruistic offering.

The always on-point Joan Rogers over at the ABA/BNA Lawyers’ Manual on Professional Conduct has put out a very thorough piece this week on all of the TIKD dustup in Florida and has spoken to many of the players, shed more light on that earlier state court action I wrote about, and otherwise put together a compelling narrative of the developments.  You can read that piece here.

She was also kind enough to let me weigh in and quote me as to why I happen to think this situation is a pretty meaningful one on the legal landscape.

Now, about that promise of something new, among the many insightful questions I received from lawyers during the course of my roadshow was one involving the continuing unfairness of situations where lawyers get blasted online by former clients but end up being prohibited by the ethics rules from responding to online criticism because of the obligation of client confidentiality and the lack of clear authority to say that the online venting waives both privilege and obligations of confidentiality.

This week the ABA has put out what could turn out to be a very important new ethics opinion that might provide a roadmap for some relief and fairness or might not.  I don’t want to spoil it for you now.  If you want to go study it ahead of time, you should be able to do so here.  Even if you don’t, I promise (threaten?) to write some more about it next week, and perhaps to even juxtapose that one with another recent ABA ethics opinion also issued this month and also relating to the world of online information but that looks at things from the perspective of judges rather than lawyers.

If you want to study up on that one, you can read it here.

Status quo prevails. A Tennessee update

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.