ETHICS & PROFESSIONAL RESPONSIBILITY
Supreme Court of Alaska (2025)
Michael Ash
In Sheldon-Lee v. Birch Horton Bittner, Inc., 565 P.3d 985 (Alaska 2025), the Supreme Court of Alaska adopted the continuous representation rule in attorney-malpractice cases, vacating summary judgment that had dismissed a malpractice claim as time-barred under the statute of limitations. (Id. at 995). The malpractice action arose from a trust settlement that Sheldon-Lee alleged she was coerced into accepting after receiving improper mediation guidance from her attorneys at Birch Horton Bittner, Inc. (BHBC). (Id. at 989–92). Sheldon-Lee filed suit against BHBC in February 2020. (Id. at 992). Shortly thereafter, the superior court granted summary judgment to the attorneys, concluding that Sheldon-Lee was “on notice” of her alleged injury either when the mediation and settlement occurred in December 2015 or, at the latest, when her motion for reconsideration was denied in August 2016. (Id. at 995). Because Alaska imposes a three-year statute of limitations on malpractice claims, the court held the claim time-barred. (Id.). Sheldon-Lee appealed. (Id. at 992). The Supreme Court of Alaska agreed that August 2016 was the latest date on which Sheldon-Lee had enough information to alert her of her injury, meaning the claim would ordinarily be barred under Alaska’s discovery rule. (Id. at 993–95). However, the Court emphasized that Alaska’s legislature has not specified how the limitations period should begin to run in attorney-malpractice cases and that the discovery rule itself is a court-created doctrine. (Id. at 997–98). Accordingly, the Court held that it retained authority to adopt the continuous representation rule and chose to do so in this case. (Id. at 995–98). Under the continuous representation rule, the statute of limitations for attorney malpractice is tolled until the attorney’s representation in the specific matter at issue has ended. (Id. at 996). The Court described the rule as a limited carveout from the discovery doctrine designed to protect ongoing attorney-client relationships, provide fairness to plaintiffs who await appeals—since the discovery rule does not delay accrual until final judgment—and allow clients an opportunity to permit attorneys to remedy alleged errors without forfeiting malpractice claims. (Id. at 996–98). The Court cautioned that accrual is not tolled by the mere continuation of a general professional relationship, explaining that when an attorney has been formally substituted out as counsel, that substitution ordinarily ends the representation. (Id. at 1000–01). However, where there is an ongoing mutual relationship in which professional services continue from the alleged malpractice, accrual does not begin. (Id.). Applying this standard, the Court held that it was a question of fact whether BHBC’s post-2016 emails—advising Sheldon-Lee that another attorney might be preferable while simultaneously providing limited legal guidance—demonstrated an “ongoing, continuous, developing, and dependent relationship.” (Id. at 1000–02). Viewing the evidence in the light most favorable to Sheldon-Lee, the Court concluded that her malpractice claim may not be untimely under the continuous representation rule and that summary judgment based on the statute of limitations passing since plaintiff’s discovery of their harm was therefore improper. (Id. at 1002).
