concurring specially.
I concur in the opinion written for the court by Justice Meschke. I write separately to note that while I agree that we should adopt the continuous representation rule in North Dakota, I have some questions and concerns about its application. Although the rule appears to be, as characterized by the majority opinion, “an adaptation of the ‘continuous treatment’ or ‘last treatment’” rule applied in medical malpractice cases, I am, at this time, unwilling to adopt the same parameters for the continuous representation rule as apparently have been established for the continuous treatment rule. Although they may, as the New York courts have said in the cases cited in the majority opinion, be equally relevant to the conduct of litigation by attorneys, there are some significant distinctions which may need to be recognized, not the least of which is the condition of the patient in a medical malpractice case and the condition of the client in a legal malpractice case.
But the real issue on the record before us is: When did the attorney-client relationship terminate? In Brown v. Johnstone, 5 Ohio App.3d 165, 450 N.E.2d 693, 695 (1982), the court stated that termination occurs when “it is evident that conduct which dissolves the essential mutual confidence between attorney and client signals the termination of the professional relationship.” I agree with the majority that the determination of the date of termination of an attorney’s representation of a client is a question of fact; that such representation did not necessarily end when Lewis assumed the bench; and that the representation of the plaintiffs by Rufer, who was hired by Lewis, does not alone constitute continuing representation.
Although it is difficult for me to conclude from the undisputed facts in this record that mutual confidence between the plaintiffs and Lewis had not dissolved, we have little or no precedent for the rule in North Dakota and the parties, by their own admission, did not develop the continuous representation rule for consideration by the trial court. Furthermore, the trial court erroneously believed the rule could not apply once Lewis became a judge. I therefore agree with the remand to permit additional discovery if only for the purpose of developing for further review the application of the continuous representation rule in this State.
GIERKE and LEVINE, JJ., concur.