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California Supreme Court Depublishes Legal Malpractice Opinion

On Behalf of | Oct 23, 2012 | Articles, Legal Malpractice

On Wednesday, September 12, 2012 the California Supreme court depublished it’s opinion issued in Shifren v. Spiro.

In this case, the dispute was over an amendment to family trust documents first drafted in 1988. Originally, the trust provided that all property would be held as community property – even if it was acquired by gift or inheritance. In 2001, the Shifrens hired Spiro and his law firm to draw up language that would amend the trust to exclude certain property interests from the community property provision. In other words, Ken Shifren wanted a property interest transferred into the trust by his mother to be held for his sole benefit.

Shifren’s lawyer drafted language to give effect to his wishes. In 2006, Shifren’s wife filed for a divorce, and the court held that the amendment to the trust did not supersede the previous agreement. As a result, the property interest transferred by Shifren’s mother counted as community property, and Ken Shifren was forced to share those trust assets with his ex-wife. In 2009, after the divorce was finalized, Ken Shifren initiated a lawsuit for legal malpractice against his lawyer.

The defense attorneys for Spiro argued that the statute of limitations (the time you have to file a case against your attorney for malpractice) had lapsed because Shifren knew or should have known of the malpractice no later than 2007. The Superior Court ruled that the statute of limitations began no later than the date Shifren incurred attorney fees, and that his time to bring the action had expired. Shifren appealed.

The state Supreme Court took the case to consider the meaning of “actual injury” as it relates to the statute of limitations. In California, the general rule is that clients have four years from the date of the instance of malpractice, or one year from when it was discovered, whichever is sooner, to initiate a malpractice claim. One exception to this rule is where the client had not yet sustained actual injury. The court cited Jordache Enterprises, Inc. v. Brobec, Phleger & Harrison, 18 Cal.4th 739 (1998), as precedence in its actual injury analysis.

The state Supreme Court concluded that statute of limitations did not begin until after the divorce was finalized – since this is when the actual injury occurred. The Court further reasoned that before the property was actually divided, Shifren’s injury was still speculative and he wouldn’t have had a claim against his attorney. As such, Shifren was not barred from bringing his case.

The state Supreme Court was petitioned by the Association of Southern California Defense Counsel and two separate law firms to depublish the opinion. In California, the depublication of an opinion does not change the result of the case; rather, depublication means that the opinion cannot be cited as authority in future controversies.

The statute of limitations is often a contested issue in legal malpractice cases, and it’s important to have an experienced malpractice attorney representing your case. The legal malpractice lawyers at Makarem & Associates understand California malpractice law, and we will fight for you to recover damages caused by the neglect or wrongful act of your lawyer. Don’t wait to wait until it’s too late; contact us today to discuss your case.

*This story original appeared in Metropolitan News-Enterprise Online.

Views expressed are the personal views of the author(s) and do not represent the views of Makarem & Associates, APLC, its partners, employees or its clients. Furthermore, the information provided by the author is not intended to be legal advice and does not create an attorney-client relationship.