## Facts

- In 1961, Gerald F. Neel and others retained an attorney to pursue a wrongful death claim against San Bernardino County.
- Without informing the clients, the retained attorney associated a law partnership as counsel of record.
- Counsel prepared and filed a complaint on May 25, 1962, but no summons was served.
- The trial court dismissed the underlying wrongful death action on December 10, 1965, for failure to serve summons within three years as required by statute.
- The clients alleged that, absent the failure to effect service, they would have prevailed in the wrongful death case.
- The clients alleged the attorneys concealed the dismissal and falsely stated during 1966–1967 that the suit was still pending.
- The clients learned of the dismissal only after consulting independent counsel on December 21, 1967.
- The clients filed a legal malpractice action on August 13, 1968.

## Issues

1. Whether a legal malpractice claim accrues at the time of the negligent act or when the client discovers, or reasonably should discover, the malpractice.
2. Whether the fiduciary nature of the attorney–client relationship supports applying the discovery rule to attorney malpractice, consistent with other professional malpractice actions.

## Decision

- The California Supreme Court reversed summary judgment for the defendant attorneys.
- The court held that the statute of limitations for legal malpractice is tolled until the client discovers, or should discover through reasonable diligence, the facts constituting the malpractice.
- On the record presented, the action filed within two years of the clients’ December 21, 1967 discovery was not time-barred.
- The case was remanded for further proceedings.

## Legal Principles

- For legal malpractice, the limitations period under California’s two-year statute does not begin to run at the negligent act; it begins upon actual or constructive discovery of the malpractice.
- Legal malpractice is treated as professional malpractice and should follow the same discovery-based accrual approach applied to other professions.
- Because attorneys stand in a fiduciary relationship to clients, clients may rely on counsel’s superior knowledge and are entitled to full and fair disclosure; accrual rules should not penalize clients for latent or concealed errors.

## Conclusion

California applies a discovery rule to legal malpractice claims, tolling the statute of limitations until the client discovers, or reasonably should discover, the attorney’s negligence, reflecting the fiduciary duties inherent in the attorney–client relationship and aligning lawyers with other professionals for accrual purposes.


Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 491 P.2d 421 (Cal. 1971)