On-July 31, 1998, Dаmon Lyons filed a complaint alleging legal malpractice against five partners and a former associate of the law firm Ropes & Gray. Acting on the defendants’ motion for summary judgment, a judge in the Superior Court concluded that the complaint should have been filed by October, 1991, and therefore was bаrred by the three-year statute of limitations applicable to legal malpractice cases, G. L. c. 260,
We recite the material facts in the light most favorable to Lyons, as the nonmoving party. See Miller v. Mooney,
Believing Newbegin’s refusal to be a breach of the trustees’ fiduciary duties under the terms of the trust, which required diversification of assets, Lyons consulted Ropes & Gray in December, 1987, in his capacity as cotrustee. He instructed Ropes & Gray to take whatever action was necessary to accept the offer to purchase the company. In February, 1988, Ropes & Gray wrote to Newbegin’s attorney explaining that the trustees would be in clear violation of the terms of the trust, as well as general fiduciary principles, if they did not respond promptly and effectively to the offer. The letter also stated that Lyons was under a duty to force Newbegin to live up to his fiduciary duties if the matter could not be resolved promptly.
In February, 1988, the offer was increased to $42.5 million. Newbegin remained steadfast in his refusal to sell. In May, 1988, Ropes & Gray prepared for filing in the Probate Court а complaint seeking instructions that the trustees obtain a current appraisal of the fair market value of the company and that the company stock be sold for not less than its appraised value. The offer to purchase was withdrawn in October, 1988. The
In October, 1990, and July, 1992, four of the trust’s sixty-eight beneficiaries (Spinner beneficiaries) filed petitions in the Probate Court seeking to remove Lyons and Newbegin as trustees and to surcharge them for allegedly breaching their duty to diversify the trust res. Thomas Hannigan, an attorney with Ropes & Gray who is not a defendant in this action, represented Lyons in these and other Probate Court proceedings.
In August, 1992, the Spinner beneficiaries filed an action for legal malpractice against the defendants in this action (attorneys for Lyons), and against the attorneys for Newbegin, alleging that the attorneys were responsible for the trustees’ failure to “take timely advantage of an offer to purchase” the company, the same allegations raised in this action by Lyons. That action was dismissed for failure to state a claim on which relief can be granted. We affirmed the judgment, holding that the Spinner beneficiaries could not pursue malpractice claims against the attorneys for the trustees because the attorneys owed no duty to the beneficiaries. See Spinner v. Nutt,
In late June or early July, 1995, Hannigan recommended that Lyons hire other counsel to represent him in the pending Probate Court proceedings because attorneys from Roрes & Gray were likely to be called as witnesses for Lyons in those proceedings. Those proceedings had been subject to an automatic stay as a result of Lyons’s petition for personal bankruptcy, filed on July 19, 1993.
On October 16, 1997, the Bankruptcy Court granted partial relief to the Spinner beneficiaries from the automatic stay. The judge allowed them to proceed on their Probate Court petitions to remove Lyons as a cotrustee of the trust, but it denied reliеf to the extent that the beneficiaries sought damages against Lyons for alleged breach of fiduciary duty. On July 24, 1998, the Spinner beneficiaries settled their surviving claims with Lyons. Under the terms of the settlement, Lyons, as trustee, agreed to engage the Spinner beneficiaries’ counsel to bring an action for legal malpractice against Ropes & Gray, and to pay to the trust any amounts recovered in that litigation. The present action was filed on July 31, 1998. Lyons alleged in his complaint for legal malpractice that the defendants were negligent in their failure seasonably and reasonably to advise him and seek the instruction of thе Probate Court and secure orders which would have brought about the sale of the company in accordance with the $42.5 million offer.
Discussion. The statute of limitations applicable to a legal malpractice claim begins to run when a client “knows or reasonably should know that he or she has sustained aрpreciable harm as a result of the lawyer’s conduct.” Williams v. Ely,
Lyons first argues that the judge erred by concluding that there was no genuine dispute of material fact as to his knowledge of malpractice on the part of Ropes & Gray. He contends that his deposition testimony is ambiguous on the question of his knowledge, and that two affidavits he filed in opposition to summary judgment establish the existence of a triable fact.
Lyons next argues that the continuing representation doctrine creates a bright-fine rule that tolled the running of the statute of limitation until the actual date that his attоrney-client relationship with Ropes & Gray ended, namely, August 7, 1995, when the firm withdrew from its representation, or, alternatively, in July, 1998, when attorneys from Ropes & Gray were no longer needed to testify on behalf of Lyons. The continuing representation doctrine, which we adopted in Murphy v. Smith,
Lyons contends that, because we did not decide in Cantu v. St. Paul Cos. whether we would adopt the сontinuing representation doctrine, our holding that the doctrine does not apply where the client actually knows that he has suffered appreciable harm as a result of his attorney’s conduct is merely dictum. He claims that our subsequent adoption of the doctrine in Murphy v. Smith, supra, without limitation, implies that we adopted the doctrine for all cases, including cases where the client has actual knowledge of harm caused by attorney conduct. We disagree. Our subsequent adoption of the doctrine in Murphy v. Smith, supra, did not affect the Cantu decision, nor did it establish a bright-line rule, as Lyons suggests. Moreover, in Murphy v. Smith, we quoted Cantu v. St. Paul Cos., supra, with approval. Although the clients in the Murphy case reasonably should have known that they suffered appreciable harm at the hands of their attorney, they had no actual knowledge to that effect. We held that in the circumstances, the continuing representation doctrine would toll the running of the statute of limitations on the clients’ legal malpractice claim from the beginning of their attorney’s reрresentation until its termination. Murphy v. Smith, supra at 137-138. We did not say that the doctrine would apply if the client had actual knowledge.
Spilios v. Cohen,
Lyons had concluded in October, 1988, when he lost the offer, that Ropes & Gray had performed inadequately. He also knew that the loss of the offer would harm the beneficiaries because he engaged Ropes & Gray to protect the trust against precisely that loss. At that time “the necessary coalescenсe of discovery and appreciable harm occurred,” and the statute of limitations began to run. Cantu v. St. Paul Cos., supra at 57. The judge correctly declined to apply the continuing representation doctrine.
Judgment affirmed.
Notes
The allegations of malpractice are hotly contested. In his deposition, the offeror stated that, consistent with newspaper industry practice, he would not have purchased the company if Newbegin had been under an order to sell it. He would have purchased the company only if Newbegin had been a willing seller, a position he made known to the parties in October, 1988.
Lyons was not represented by Ropes & Gray on his bankruptcy petition.
The judge concluded, altеrnatively, that, if the statute of limitations had not begun to run in October, 1988, it would have begun to run in March, 1995, when the company was sold for $16.5 million, because “a reasonable person would be aware of the considerable harm that had occurred.” The judge further determined that, at the least, the “continuing representаtion” doctrine ceased to apply as of July 25, 1995, when, as Lyons admitted in his deposition, successor counsel “took over” from Ropes & Gray. Because we agree
The admission appears in the following portion of Lyons’s deposition:
Q.: “Sir, when was it. . . that you first came to the conclusion that Ropes & Gray . . . had acted with malpractice?”
A.: “That would be January, ‘89, when . . . Ropes & Gray discharged him from the case.”
Q.: “January, ‘89?”
A.: “Have I got the wrong date? Bob Gad went on for a full year, okay? Then an internal — whatever — occurred within Ropes & Gray, and he stepped out.”
Q:. “And Mike Harrington stepped in?”
A.: “Yes.”
Q.: “And you felt at that time there had been malpractice?”
A.: “Up to that point?”
Q.: “Yes.”
A.: “Yes, and thereafter, too.”
Q.: “Okay. Did you ever express that view to any lawyer at Ropes & Gray?”
A.: “No. I wasn’t going to spit in their face. They were my lawyers, you know. They knew what they were doing. They — if they didn’t counsel me, fine. They knew what — but still they knew what they were doing. But it turns out they didn’t.”
Q.: “When did you conclude — this is the date I’m trying to get — when did you conclude that [Ropes & Gray] didn’t know what they were doing?”
A.: “When [the offeror] went away.”
Q.: “When was that? Is that the October, [1988,] date we have been talking about?”
A.: “1 believe so. Whenever he went away.”
In an affidavit filed approximately one year before his deposition, Lyons assertеd that he did not list any malpractice claim against Ropes & Gray in his bankruptcy petition because he “was unaware that they had committed malpractice.” (Other facts, in addition to his deposition, indicate that Lyons
Approximately three weeks after his deposition Lyons filed an affidavit in which he stated that, as of July 25, 1995, when he met with Hannigan and his successor counsеl, “I felt comfortable with this [the transition] and still believed that they were doing a good job. Up to that point at no time had I concluded that they did not know what they were doing.”
The Appeals Court went on to say, however, that the continuing representation doctrine would provide independent basis for allowing the client to proceed with her malpractice claim. Spilios v. Cohen,