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Although the former rule was clearly designed to prevent surprise, it is not clear to us that it adequately accomplished this purpose. The only question about malpractice is when did the injury occur (i.e., when did a damage result). Since the attorney does not advise his client when to file suit, the client will not know that a malpractice action is pending until the final outcome of the litigation, and even then the attorney may deny that any malpractice occurred. The former rule admits of no distinction between an attorney who affirmatively misrepresents the status ofa client's suit and an attorney who does not disclose the existence of a suit, but declines [6 Cal. 3d 195] to advise.
We are not prepared to write the rule of three yeas ago into each new case. The rule is not required by principles of unwritten or common law, by statute, or by judicial decision. Defendants did not fit the mold; they are not pioneers in the cause of remedying what now seems to be the most serious flaw in the traditional system of our law.
A.A. Preferred Sav. & Loan Assn. v. Powers (1996) 43 Cal.App.4th 1004, 1014 [51 Cal. Rptr.2d 587], is consistent with our approach. There the defendant law firm failed to inform plaintiff that the statute of limitations had run on her cause of action. The firm had not only failed to advise the client of the limitations period, it had actively concealed the existence of the lawsuit. This court found that such conduct gave rise to equitable estoppel. fn. 36 [6 Cal. 3d 196]
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