Division I of the Washington Court of Appeals recently relied on a law firm’s “end of engagement” letter to a former client in dismissing a claim by the former client against the firm as time-barred. The law firm in Lagow v. Hagens Berman Sobol Shapiro LLP, 2023 WL 7490078 (Wn. App. Nov. 13, 2023) (unpublished), represented the former client in two lawsuits in Texas. The last of the two lawsuits settled in 2014. At that time, the law firm sent the client an end of engagement letter reading: “‘With this payment, our representation of you under the existing retainer agreement has come to an end[.]’”
The former client sued the law firm in 2022, alleging a variety of claims stemming from the Texas lawsuits that concluded in 2014. Washington has a three-year statute of limitation for malpractice and related claims. The law firm moved to dismiss the former client’s claims as time-barred. The trial court granted the motion as to all of the claims except an unjust enrichment claim that also had a three-year limitation period. On the latter, following discovery, the trial court granted summary judgment to the law firm—ruling that the remaining claim was also time-barred.
The former client only appealed the dismissal of the unjust enrichment claim. Notwithstanding the 2014 end of engagement letter, the former client argued on appeal that the law firm continued to represent him because he had sent the firm an email in 2019 proposing a new lawsuit—which the firm rejected.
The Court of Appeals affirmed the trial court’s dismissal. In doing so, it first noted that although there is a subjective prong to the test for the existence of an attorney-client relationship under the Washington Supreme Court’s leading decision on this point—Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d 71 (1992)—a putative client must meet an objective prong as well. The Court of Appeals concluded that the end of engagement letter was conclusive on the objective prong and that the relationship had ended in 2014. The Court of Appeals also found that the later correspondence did not reopen the original representation (or a create a new one) and, therefore, the former client’s claim was time-barred.
Although Lagow does not plow any new ground legally, it provides a useful illustration of the practical importance to overall law firm risk management of routinely sending end of engagement letters.
Mark Fucile. Mark handles professional responsibility and law firm risk management throughout the Northwest. He has chaired the WSBA Committee on Professional Ethics, is editor-in-chief of the WSBA Legal Ethics Deskbook and teaches legal ethics as an adjunct for the University of Oregon School of Law at its Portland campus. He can be reached at 503-860-2163 and mark@frllp.com.
