We had previously written about Purolite Corporation’s legal malpractice claim against mega-firm Morgan, Lewis & Bockius. The case stems from the firm’s advice on whether Purolite subsidiaries could continue to do business with Cuban companies. Now, after more than two weeks of trial, the case is going to the jury. And the entire case may come down to whether Purolite filed its legal malpractice claim within the statute of limitations.

The limitations question is interesting. The company and its owners were the subject of criminal investigations about the transactions for years. But during those investigations, the firm allegedly continued to represent the company and the brothers and continued to advise the company and the brothers that the transactions were acceptable. The plaintiffs claimed that they didn't discover the advice was wrong until a judge finally rejected their defenses.

It is hard to determine how the case would turn out in Texas, which has a tolling provision for litigation that says the statute of limitations does not begin to run as long as the attorneys continue to represent the client in the litigation. The rationale behind the rule is that the client should not be forced to take inconsistent positions in the underlying case and in the legal malpractice case. As long as the underlying case is ongoing, the client must take the position that the client's contentions are correct and that the client should prevail. Forcing the client to sue his or her attorney at the same time, where the client would claim that the attorney's arguments are wrong, could force the client to take inconsistent positions. I have never researched whether such a tolling would occur if the lawyer continues to represent the client in a criminal investigation, but the rationale would certainly apply in the criminal context as well.