The Alaska Supreme Court recently adopted the “continuous representation” rule for gauging when the statute of limitation begins to run on legal malpractice claims. Under the rule, the limitation period is tolled during period the lawyer or law firm alleged to have committed malpractice continues to represent the client on the matter involved.
Sheldon-Lee v. Birch Horton Bittner, Inc., __ P.3d __, 2025 WL 879780 (Alaska 2025), involved a claim that the defendant lawyers had not adequately represented the plaintiff at a mediation. Litigation in the underlying matter followed the mediation and the law firm continued to represent the plaintiff in various aspects of the case involved.
The limitation period for legal malpractice claims in Alaska is three years—tempered by a “discovery rule” that postpones the start of the limitation period until the point the client either knows or reasonably should know of the lawyer’s asserted error. In the case at hand, the plaintiff waited to file the legal malpractice claim until the three years—extended by the discovery rule—had run. At the trial court, the defendant law firm moved for summary judgment on the statute of limitation. In response, the plaintiff argued that the limitation period had been tolled during the time that the defendant continued to represent the plaintiff in the underlying case. The trial court granted summary judgment and an appeal to the Alaska Supreme Court followed.
On appeal, the Alaska Supreme Court reversed—adopting the continuous representation rule and finding that fact issues in that regard precluded summary judgment. In doing so, the Alaska Supreme Court noted that the rule allows the client to continue with their lawyers—if they choose—without putting a future claim at risk and gives lawyers a chance to “fix” the issue that led to the potential claim.
In adopting the continuous representation rule, the Alaska Supreme Court cited Washington appellate decisions taking the same approach.
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 andmark@frllp.com.
