Before Chief Justice Pickering and Justices Hardesty and Saitta. Opinion by Justice Hardesty.
In this appeal, the Court considered whether an attorney’s alleged negligence in representing a creditor in the non-adversarial parts of a bankruptcy proceeding constitutes litigation malpractice causing the Hewitt v. Allen, 118 Nev. 216, 43 P.3d 345 (2002) rule to toll the statute of limitations for a professional malpractice claim. Generally a claim for professional malpractice against a lawyer must be brought within two years of discovery of the cause of action. The litigation tolling rule set forth in Hewitt provides that the statutory limitation period for a claim of legal malpractice involving the representation of a client during litigation does not commence until the underlying litigation is concluded. Thus, in the context of litigation malpractice, damages do not begin to accrue until the underlying legal action has been resolved, and the malpractice action does not accrue while an appeal from the adverse ruling is pending. Whether the Hewitt rule applied to bankruptcy proceedings was a question of first impression for Nevada. Relying on the reasoning in an Arizona case, Cannon v. Hirsch Law Office, P.C., 213 P.3d 320 (Ariz. Ct. App. 2009), the Court held that because no complaint was filed in the bankruptcy proceeding, by definition, the proceedings were non-adversarial, did not occur in the “course of litigation,” and did not cause the Hewitt litigation tolling rule to apply. Accordingly, the Court found that the district court was correct in granting the attorney’s motion to dismiss pursuant to the discovery rule articulated in NRS 11.207(1). In addition, the Court held that because it was undisputed by the parties that the attorney only represented appellants in the bankruptcy action from July 2002 to February 2003, any professional malpractice claim would therefore not be tolled by the litigation malpractice tolling rule after February 2003, even if the Court were to conclude that the bankruptcy proceeding in this case qualified as litigation. Affirmed. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson.)
