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The goal of protecting practitioners from stale claims can be achieved with relatively simple safeguards. (2) An attorney need not withdraw from an indigent litigant's case before the time has run; communications between clients and their attorneys must be recorded, and the client should be advised that the attorney has filed suit on his behalf. In addition, attorneys should be warned that they may be liable for the consequences of malpractice in case of loss and that they should not invest client funds in a manner contrary to the client's expressed instructions. Therefore, a measure is appropriate to assure reasonable reliance by prospective clients upon the advice of their attorneys. The Legislature is the proper forum to provide appropriate safeguards in the interest of any client whose attorney may deviate from the proper course of action, and to provide additional provisions for the continuing supervision of the affairs of any partnership.
It is not our intention to interject a procedural obstacle into an existing judicial system. However, there is a material difference between a court which declares a rule of law to be unconstitutional, and one which declares the rule of law to be inapplicable to a given set of facts. The former approach entails the ordinary process of judicial decision-making; the latter tends to deprive those facts of the normal meaning of those who live under the rule. As a practical matter, in any change of the law, the holder of a cause of action is eventually given three alternatives. fn. 36 Perhaps he may forego his rights, even though he may originally have chosen the wrong avenue. He may bring an action within the period of limitations in reliance upon the old law and lose; or he may make timely application for relief under the new law and hope for a favorable ruling; or he may stand on his rights believing that he will ultimately prevail. If the judgment in his favor is ultimately reversed, he did not lose. In effect, when a statute of limitations has run, a plaintiff may demand that the defendant forego his right to a judgment. Furthermore, if he is wrong, it is the defendant who has caused the delay, and by the time the mistake can be corrected, the defendant and his lawyers are no longer likely to be around to defend him. This being the case the ideal procedure for a court to adopt is unchanged - the one that plaintiff is at liberty to reject a defendant who stands on the statute of limitations. d2c66b5586