  United States Court of Appeals
      for the Federal Circuit
                ______________________

                  MARVA J. SNEED,
                  Claimant-Appellant

                           v.

     ROBERT A. MCDONALD, SECRETARY OF
            VETERANS AFFAIRS,
               Respondent-Appellee
             ______________________

                      2015-7069
                ______________________

   Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-2715, Judge William A. Moor-
man.
               ______________________

                Decided: April 22, 2016
                ______________________

    BENJAMIN A. HERBERT, Kirkland & Ellis LLP, Los
Angeles, CA, argued for claimant-appellant. Also repre-
sented by WILLIAM H. BURGESS, Washington, DC.

    RENEE GERBER, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by SCOTT D. AUSTIN, ROBERT E. KIRSCHMAN, JR.,
BENJAMIN C. MIZER; MEGHAN ALPHONSO, DAVID J.
BARRANS, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
2                                        SNEED   v. MCDONALD



                  ______________________

    Before PROST, Chief Judge, DYK, and WALLACH, Circuit
                           Judges.
      Opinion for the court filed by Circuit Judge DYK.
     Concurring opinion filed by Circuit Judge WALLACH.
DYK, Circuit Judge.
    The Board of Veterans’ Appeals (“Board”) denied
Marva J. Sneed’s claim for dependency and indemnity
compensation. The Court of Appeals for Veterans Claims
(“Veterans Court”) dismissed Ms. Sneed’s appeal because
it was untimely filed and declined to find equitable tolling
based on attorney abandonment. We hold that, even
assuming Ms. Sneed showed that there was attorney
abandonment, she failed to demonstrate that she diligent-
ly pursued her rights. We affirm.
                       BACKGROUND
    Ms. Sneed’s husband, Reginald A. Sneed, served on
active duty from June 1964 to June 1968. Mr. Sneed
suffered from numerous service-connected disabilities. In
January 2001, Mr. Sneed suffered a spinal cord contusion
from a fall, which left him quadriplegic and confined to a
chin-operated wheelchair. In October 2003, Mr. Sneed
was living in a nursing home for paralyzed veterans when
a fire broke out, and all of the residents, including Mr.
Sneed, died of smoke inhalation.
    Following the death of her husband, Ms. Sneed filed a
claim for dependency and indemnity compensation under
38 U.S.C. § 1310. Mr. Sneed’s service-connected disabili-
ties were alleged to have been principal or contributory
causes of his death, see 38 C.F.R. § 3.312, based on the
theories that Mr. Sneed’s service-connected spondylosis
and spinal stenosis contributed to his fall and resultant
quadriplegia, and that Mr. Sneed’s service-connected
SNEED   v. MCDONALD                                      3



posttraumatic stress disorder, tinnitus, and hearing loss
prevented him from leaving the nursing home during the
fire.
     The regional office of the Department of Veterans Af-
fairs (“VA”) denied Ms. Sneed’s claim, and the Board
affirmed. The Board’s decision was mailed to Ms. Sneed
on April 5, 2011. Ms. Sneed’s notice of appeal to the
Veterans Court was due on August 3, 2011, 120 days after
the Board mailed its decision. 38 U.S.C. § 7266(a).
     On April 13, 2011, well within the 120-day period, Ms.
Sneed contacted a lawyer, Katrina J. Eagle, requesting
that Ms. Eagle represent her in an appeal to the Veterans
Court. According to Ms. Sneed, at the request of Ms.
Eagle’s secretary, she transmitted case materials to Ms.
Eagle’s office by mail and fax, and had several oral com-
munications with Ms. Eagle’s office. The record does not
describe the exact nature of the material transmitted or
the substance of the communications. On August 2, 2011,
Ms. Sneed received a letter from Ms. Eagle. In her letter,
Ms. Eagle provided an assessment of Ms. Sneed’s service
connection claim, explaining her view that the claim “does
not meet the criteria under 38 C.F.R. § 3.312,” and con-
cluded, “I do not believe the VA erred in denying your
claim; thus, I will not be able to represent you for any
subsequent appeal for entitlement to service connection
for the cause of death, and for [dependency and indemnity
compensation] benefits.” 1 J.A. 53.




   1    Ms. Eagle’s assessment was based on the Board’s
conclusion that “the immediate cause of [Mr. Sneed’s]
death was smoke inhalation” and “not . . . a result of a
service-connected disability, nor did a service-connected
disability cause or contribute substantially or materially
to his death.” J.A. 16.
4                                        SNEED   v. MCDONALD



     Ms. Eagle further stated, “[y]ou are free to seek an-
other opinion from another attorney, of course. Moreover,
you are not required to have an attorney to proceed before
the Court. However, should you decide to appeal the
Board’s adverse decision, you must file your Notice of
Appeal no later than August 5, 2011.” J.A. 53–54. The
August 5 statement was erroneous; the correct deadline
was August 3, the next day following Ms. Sneed’s receipt
of Ms. Eagle’s letter. Ms. Sneed stated that, between
August 2 and August 31, 2011, she contacted at least
fourteen lawyers, who all turned down her case. Having
failed to secure a lawyer to take her case, Ms. Sneed filed
the notice of appeal herself on September 1, 2011—
twenty-nine days after the deadline.
     On September 7, 2011, Ms. Sneed sent a letter to the
Veterans Court explaining her late filing. On June 14,
2012, the Veterans Court ordered Ms. Sneed to file a
response discussing whether the circumstances in her
case warranted equitable tolling of the 120-day deadline.
In September 2012, the Veterans Court dismissed Ms.
Sneed’s appeal as untimely filed, finding that equitable
tolling did not apply because “the circumstances leading
up to her late NOA are not extraordinary, but rather
evidence general negligence or procrastination.” Sneed v.
Shinseki (“Sneed I”), No. 11-2715, 2012 WL 4464874, at *2
(Vet. App. Sept. 27, 2012). The Veterans Court distin-
guished Ms. Sneed’s argument for tolling from “circum-
stances [that] precluded a timely filing [justifying
equitable tolling,] . . . such as (1) mental illness[,] . . .
(2) reliance on the incorrect statement of a VA official, or
(3) a misfiling at the regional office or the Board.” Id. at
*2 (internal quotation marks and citations omitted).
   On appeal we vacated and remanded. Sneed v.
Shinseki (“Sneed II”), 737 F.3d 719, 728–29 (Fed. Cir.
2013). We held that “attorney abandonment may justify
equitably tolling the filing deadline in appeals to the
Veterans Court.” Id. We also found, as the government
SNEED   v. MCDONALD                                        5



conceded during oral argument in the first appeal, that
the Veterans Court had not made any explicit findings
with respect to diligence. Id. at 724.
     On remand, Ms. Sneed argued that the Veterans
Court should find attorney abandonment by Ms. Eagle,
warranting equitable tolling of Ms. Sneed’s deadline to
file her notice of appeal. In October 2014, the Veterans
Court again held that equitable tolling of the statutory
deadline was not warranted. Sneed v. McDonald (“Sneed
III”), No. 11-2715, 2014 WL 5365571, at *1 (Vet. App. Oct.
22, 2014), available at J.A. 1–10. The Veterans Court
concluded that there was no attorney abandonment
“absent an agreement [between Ms. Eagle and Ms. Sneed]
to represent [Ms. Sneed] or file the NOA.” J.A. 8. The
Veterans Court also held that Ms. Sneed did not act
diligently in pursuing her appeal rights. Ms. Sneed ap-
pealed. We have jurisdiction under 38 U.S.C. § 7292.
                        DISCUSSION
                              I
     Section 7292 of title 38 provides that we “shall decide
all relevant questions of law” arising from appeals from
decisions of the Veterans Court, but, “[e]xcept to the
extent that an appeal . . . presents a constitutional issue,
[we] may not review (A) a challenge to a factual determi-
nation, or (B) a challenge to a law or regulation as applied
to the facts of a particular case.” 38 U.S.C. § 7292(d)(1),
(d)(2). Though the “question whether equitable tolling
applies in a particular case often involves, in part, the
application of law to fact, . . . when the material facts are
not in dispute and the adoption of a particular legal
standard would dictate the outcome of the equitable
tolling claim, this court has treated the question of the
availability of equitable tolling as a matter of law that we
are authorized by statute to address.” Bailey v. Principi,
351 F.3d 1381, 1384 (Fed. Cir. 2003); see also Santana-
Venegas v. Principi, 314 F.3d 1293, 1298 (Fed. Cir. 2002).
6                                       SNEED   v. MCDONALD



There is no dispute here as to the relevant facts, so the
issue presented is one of law, a matter within our jurisdic-
tion.
                             II
    In Henderson v. Shinseki, the Supreme Court held
that “the deadline for filing a notice of appeal with the
Veterans Court [under 38 U.S.C. § 7266(a)] does not have
jurisdictional attributes, [though] [t]he 120-day limit is
nevertheless an important procedural rule.” 562 U.S. 428,
441–42 (2011). Although the Supreme Court did not
decide whether equitable tolling of the statutory deadline
was available, see id. at 442 n.4, after Henderson, we have
held that the 120-day deadline in § 7266(a) is subject to
equitable tolling. See, e.g., Sneed II, 737 F.3d at 728; see
also Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir.
2014).
     “A litigant seeking equitable tolling bears the burden
of establishing two elements: (1) that he has been pursu-
ing his rights diligently, and (2) that some extraordinary
circumstance stood in his way” and prevented timely
filing. Sneed II, 737 F.3d at 725 (quoting Pace v. DiGug-
lielmo, 544 U.S. 408, 418 (2005)); see also Menominee
Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 755
(2016) (explaining that the “diligence prong . . . covers
those affairs within the litigant’s control; the extraordi-
nary-circumstances prong, by contrast, is meant to cover
matters outside its control”). “Equitable tolling’s two
components [are] ‘elements,’ not merely factors of inde-
terminate or commensurable weight.” Menominee Indian
Tribe, 136 S. Ct. at 756 (citation omitted).
SNEED   v. MCDONALD                                          7



     Although attorney abandonment may support equita-
ble tolling, 2 attorney negligence is not sufficient to justify
equitable tolling. To the contrary, the client is normally
responsible for the malfeasance of the attorney, and in
such cases has a malpractice remedy, not a tolling reme-
dy. See Maples v. Thomas, 132 S. Ct. 912, 922 (2012)
(“[U]nder well-settled principles of agency law, the princi-
pal bears the risk of negligent conduct on the part of his
agent.”) (internal quotation marks and citation omitted).
Equitable tolling does not extend to “a garden variety
claim of excusable neglect, such as a simple miscalcula-
tion that leads a lawyer to miss a filing deadline.” Sneed
II, 737 F.3d at 727 (quoting Holland v. Florida, 560 U.S.
631, 651–52 (2012)). 3 The Supreme Court has held, for
example, that a litigant’s failure to file a Title VII claim
within the statutory period set by 42 U.S.C. § 2000e–16(c)
after receipt of an EEOC decision cannot be excused based
on her lawyer’s absence from his office at the time that
the agency notice was received. Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 96 (1990). Attorney abandonment,
under which “a client cannot be charged with the acts or
omissions of an attorney who has abandoned him,” Ma-
ples, 132 S. Ct. at 924, is a narrow exception to the usual
rule.



    2   See Sneed II, 737 F.3d at 728 (citing Maples v.
Thomas, 132 S. Ct. 912 (2012); Holland v. Florida, 560
U.S. 631 (2010)).
    3   Unrepresented litigants also routinely face condi-
tions that, while challenging, are not “extraordinary.” See
Menominee Indian Tribe, 136 S. Ct. at 757 (“[I]t is com-
mon for a litigant to be confronted with . . . limited finan-
cial resources, an uncertain outcome based on an
uncertain legal landscape, and impending deadlines.
These circumstances are not ‘extraordinary.’”) (internal
quotation marks and citations omitted).
8                                        SNEED   v. MCDONALD



                             III
      The Veterans Court found that attorney abandonment
had not been established because an attorney-client
relationship did not exist between Ms. Sneed and Ms.
Eagle. “[L]acking” from Ms. Sneed was any “declar[ation]
that a written agreement for legal services existed be-
tween her and Ms. Eagle. She does not declare she en-
tered into a written retainer agreement with her or even
that an oral contract of some sort was formed. [Ms. Sneed]
does not declare she was ever billed by or made payments
to Ms. Eagle or that she agreed to make any payment
. . . .” J.A. 7. In short, the Veterans Court concluded that
there were no extraordinary circumstances justifying
equitable tolling because “[n]either [Ms. Sneed’s] state-
ment nor her attached exhibits and evidence indicate the
existence of an (explicit or implicit) attorney-client rela-
tionship between herself and Ms. Eagle after issuance of
the April 2011 Board decision.” J.A. 8.
    Both Ms. Sneed and Ms. Eagle reside in California,
and the parties here agree that California law controls on
the issue of whether an attorney-client relationship
existed. As the government points out, California requires
an express or implied contract to create an attorney-client
relationship. See, e.g., Responsible Citizens v. Superior
Court, 16 Cal. App. 4th 1717, 1732 (1993). But it is also
true that California appears to give a very liberal con-
struction of the implied contract requirement. Thus, for
example, an undertaking by a lawyer to provide legal
advice or the giving of actual advice as to a course of
action is sufficient, even though the attorney and prospec-
tive client had never entered into a formal agreement for
representation. Under California law, it is clear that
neither the absence of an agreement as to services and
fees, nor the preliminary nature of Ms. Sneed’s and Ms.
Eagle’s communications, precluded the formation of an
attorney-client relationship. See, e.g., People ex rel. Dep’t
SNEED   v. MCDONALD                                               9



of Corps. v. SpeeDee Oil Change Sys., Inc., 980 P.2d 371
(Cal. 1999).
     In SpeeDee, the California Supreme Court declared
that “[t]he fiduciary relationship existing between lawyer
and client extends to preliminary consultations by a
prospective client with a view to retention of the lawyer,
although actual employment does not result. . . . The
absence of an agreement with respect to the fee . . . does
not prevent the relationship from arising.” Id. at 379–80
(internal quotation marks and citations omitted). Rather,
the relationship is created when “the attorney knowingly
obtains material confidential information from the client
and renders legal advice or services as a result.” Id. at
380, 382–83; see also Perkins v. W. Coast Lumber Co., 62
P. 57, 58 (Cal. 1900) (“When a party seeking legal advice
consults an attorney at law, and secures that advice, the
relation of attorney and client is established prima fa-
cie.”); 7 Cal. Jur. 3d Attorneys at Law § 170 (2015).
    Similarly, in Miller v. Metzinger, the California Court
of Appeal held that “an attorney-client relationship giving
rise to fiduciary obligations” could arise where an attor-
ney “undertook to obtain . . . records necessary to an
evaluation of [a legal claim] and to advise concerning
appropriate action to be taken.” 91 Cal. App. 3d 31, 40
(1979); see also Perkins, 62 P. at 58 (the lawyer “advised
the [client] . . . not to file for record . . . any claim of lien”).
Thus the attorney’s statements that “his function was
purely investigatory and that he did not agree to repre-
sent [the client], charge any fee for his services or secure a
retainer agreement” did not preclude the existence of an
attorney-client relationship. Miller, 91 Cal. App. 3d at 39.
    Here, there was no evidence that Ms. Eagle agreed to
provide an evaluation of the case, nor did she provide any
evaluation until she declined to represent Ms. Sneed and
explained her reasons for doing so. There is, as well, no
evidence that Ms. Sneed provided confidential materials
10                                      SNEED   v. MCDONALD



to Ms. Eagle. The California cases do not address whether
accepting non-confidential materials in order to consider a
case and providing an evaluation of the case while declin-
ing representation creates an attorney-client relationship.
We need not decide whether, under California law, there
is an attorney-client relationship in such circumstances.
Nor do we decide whether, assuming that an attorney-
client relationship was formed, there can be attorney
abandonment satisfying the extraordinary circumstance
requirement when the attorney did not undertake the
representation.
    Even assuming there was attorney abandonment, Ms.
Sneed does not satisfy the diligence prong. See Pace, 544
U.S. at 418 (“Even if we were to accept petitioner’s theory
[that he satisfied the extraordinary circumstance test], he
would not be entitled to relief because he has not estab-
lished the requisite diligence.”); see also Menominee
Indian Tribe, 136 S. Ct. at 756, 757 n.5 (holding that
“equitable tolling’s two components [are] ‘elements,’” and
noting that “[b]ecause we hold that there were no ex-
traordinary circumstances, we need not decide whether
the Tribe was diligently pursuing its rights”) (citation
omitted); Lawrence v. Florida, 549 U.S. 327, 336–37
(2007) (rejecting equitable tolling without addressing
diligence because petitioner fell “far short of showing
‘extraordinary circumstances’”).
    The reasonable diligence element demands a showing
of diligence during the alleged extraordinary circum-
stance period. See Checo, 748 F.3d at 1380 (holding that
the party “must only demonstrate due diligence during
the extraordinary circumstance period” of her homeless-
ness). Under Checo’s “stop-clock approach,” if diligence is
shown, the 120-day filing period would be tolled during
the extraordinary circumstance period and resume run-
ning when the extraordinary circumstance ended. Id. Ms.
Sneed, then, was required to show reasonable diligence
between April 13, 2011, when Ms. Eagle allegedly began
SNEED   v. MCDONALD                                          11



representing her, and August 2, 2011, when Ms. Eagle
allegedly abandoned her.
     While “[a] client [cannot] be faulted for failing to act
on [her] own behalf when [she] lacks reason to believe
[her] attorneys of record, in fact, are not representing
[her],” Maples, 132 S. Ct. at 924, Ms. Sneed had reason to
suspect that Ms. Eagle was not representing her. Where
the attorney has not undertaken the representation,
reasonable diligence requires that the client check with
the attorney before the statutory filing time is about to
run out to confirm that the attorney will undertake the
representation. There is no suggestion that Ms. Sneed did
this. The Veterans Court found that Ms. Sneed “asserts
that she assumed that Ms. Eagle would file the NOA for
her and . . . does not state that she took any action during
the 120-day period to confirm that . . . an appeal had been
filed with this Court.” J.A. 9.
    Ms. Sneed’s activity during the statutory period
stands in contrast to the situations in the Supreme
Court’s decisions in Holland and Maples. In Holland, a
prisoner’s lawyer missed the statutory deadline to file a
federal habeas petition under 28 U.S.C. § 2244(d)(1)(A),
despite the prisoner’s repeated requests and reminders to
his attorney to file the petition. 560 U.S. at 652. 4 The



    4    In Holland, the Court found that
    [the attorney] failed to file [the prisoner’s] federal
    petition on time despite [the prisoner’s] many let-
    ters that repeatedly emphasized the importance of
    his doing so. [The attorney] apparently did not do
    the research necessary to find out the proper filing
    date, despite [the prisoner’s] letters that went so
    far as to identify the applicable legal rules. [The
    attorney] failed to inform [the prisoner] in a time-
    ly manner about the crucial fact that the Florida
12                                        SNEED   v. MCDONALD



prisoner “not only wrote his [appointed] attorney numer-
ous letters seeking critical information and providing
direction; [but] also contacted state courts, their clerks,
and the [state] Bar Association in an effort to have [his
attorney]—the central impediment to the pursuit of his
legal remedy—removed from his case. And the very day
that [the prisoner] discovered that his AEDPA clock had
expired due to [his attorney’s] failings, [the prisoner]
prepared his own habeas petition pro se and promptly
filed it with the District Court.” Id. at 653. The Court held
that the prisoner had satisfied the diligence requirement
and remanded for a determination on the issue of ex-
traordinary circumstances. Id. at 653–54.
     In Maples, the issue was whether there was “cause” to
excuse a state procedural default under Coleman v.
Thompson, 501 U.S. 722, 750 (1991). 132 S. Ct. at 922.
The Court found that attorney abandonment constituted
“cause.” Id. at 924. While the case did not involve equita-
ble tolling, the Court’s analysis is nonetheless pertinent,
as recognized in Sneed II. See 737 F.3d at 728. In Maples,
a prisoner on death row was represented by two out-of-
state pro bono attorneys. 132 S. Ct. at 918. With their aid,
the prisoner filed a petition for postconviction relief in
state court. Id. After the petition was filed, both attorneys
left the firm, but neither informed their client of their
departure or of their inability to continue to represent
him. Id. at 919. Upon denying the prisoner’s petition, the
trial court sent copies of its order to the prisoner’s counsel


     Supreme Court had decided his case, again de-
     spite [the prisoner’s] many pleas for that infor-
     mation. And [the attorney] failed to communicate
     with his client over a period of years, despite vari-
     ous pleas from [the prisoner] that [his attorney]
     respond to his letters.
560 U.S. at 652.
SNEED   v. MCDONALD                                       13



of record, but no copy was sent or was forwarded to the
prisoner. Id. at 920. Without knowledge of the trial court’s
action, and “[g]iven no reason to suspect that he lacked
counsel able and willing to represent him,” the prisoner
missed his 42-day deadline, under Rule 4(a)(1) of the
Alabama Rules of Appellate Procedure, to file a notice of
appeal from the trial court’s order denying postconviction
relief. Id. The Supreme Court concluded that attorney
abandonment had been established, finding that the
prisoner had no basis to believe that his petition had been
denied or that he was unrepresented. Id. at 927.
     The opposite situation was true for Ms. Sneed. Unlike
the prisoner in Maples, she received notice of the filing
deadline. Unlike the prisoner in Holland, she did nothing
to ensure that the person she had asked to represent her
was acting to make the necessary filing. The Veterans
Court did not err in holding that Ms. Sneed did not act
diligently. The absence of diligence is particularly clear
here because Ms. Eagle had never before represented Ms.
Sneed and had not agreed to represent her in the appeal
or to file a notice of appeal. Ms. Sneed’s failure to confirm
that Ms. Eagle would be acting on her behalf and that she
had filed a notice of appeal precludes a finding of reason-
able diligence. The fact that Ms. Sneed thought that Ms.
Eagle had agreed to represent her cannot excuse her lack
of diligence given the want of any objective basis for such
an assumption.
     Because Ms. Sneed did not demonstrate that she had
been diligently pursuing her rights, the Veterans Court
did not err in holding that equitable tolling is not availa-
ble.
                       AFFIRMED
                           COSTS
    No costs.
  United States Court of Appeals
      for the Federal Circuit
                 ______________________

                   MARVA J. SNEED,
                   Claimant-Appellant

                            v.

     ROBERT A. MCDONALD, SECRETARY OF
            VETERANS AFFAIRS,
               Respondent-Appellee
             ______________________

                       2015-7069
                 ______________________

   Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-2715, Judge William A. Moor-
man.
               ______________________
WALLACH, Circuit Judge, concurring in the result.
     The doctrine of equitable tolling “pauses the running
of, or ‘tolls,’ a statute of limitations.” Lozano v. Montoya
Alvarez, 134 S. Ct. 1224, 1231 (2014) (citation omitted).
“[A] litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005) (citation omitted). An attorney’s
abandonment of a client may constitute extraordinary
circumstances. See Sneed v. Shinseki, 737 F.3d 719, 726–
27 (Fed. Cir. 2013). The existence of an attorney-client
relationship is a condition precedent to a finding of aban-
donment. See Maples v. Thomas, 132 S. Ct. 912, 922–23
2                                        SNEED   v. MCDONALD



(2012) (explaining that attorney abandonment may arise
when an attorney severs an existing relationship with a
client).
     The majority concludes that the doctrine of equitable
tolling is not available to Appellant Marva J. Sneed. Maj.
Op. at 13. In reaching its conclusion, the majority does
not decide whether the United States Court of Appeals for
Veterans Claims (“Veterans Court”) committed a legal
error when it found that, under California law, no attor-
ney-client relationship existed between attorney Katrina
Eagle and Ms. Sneed and that, consequently, no extraor-
dinary circumstances prevented Ms. Sneed from appeal-
ing to the Veterans Court. Id. at 10.
    I write separately because the Veterans Court’s ex-
traordinary circumstances analysis is legally defective.
The Veterans Court applied an improperly narrow legal
standard in assessing whether an attorney-client rela-
tionship existed between Ms. Eagle and Ms. Sneed.
Despite that error, I agree with the majority that the
court should not provide any relief to Ms. Sneed because
she did not diligently pursue her right to appeal to the
Veterans Court.
                            I.
    Ms. Sneed contends that the Veterans Court misap-
plied California law when it determined that no attorney-
client relationship existed between her and Ms. Eagle,
which in turn meant that Ms. Sneed could not claim
attorney abandonment as a basis for extraordinary cir-
cumstances. Ms. Sneed principally raises two arguments:
(1) “the Veterans Court relied on an erroneous view of
California law[1] regarding attorney-client relationships,”



    1  “Both Ms. Sneed and Ms. Eagle reside in Califor-
nia, and the parties here agree that California law con-
SNEED   v. MCDONALD                                        3



Appellant’s Br. 23 (capitalization modified); and (2) the
Veterans Court “erred by substituting California’s legal
technicalities for the equitable judgment the tolling
inquiry requires,” id. at 30 (capitalization modified). I
agree with Ms. Sneed’s first argument.
    The Veterans Court articulated an incomplete and,
thus, improperly narrow legal standard for determining
when an attorney-client relationship exists under Califor-
nia law. It correctly found that (1) a contract is required
to establish an attorney-client relationship and (2) a
contract can be express or implied-in-fact. Sneed v.
McDonald (Sneed III), No. 11-2715, 2014 WL 5365571, at
*4 (Vet. App. Oct. 22, 2014) (citing Responsible Citizens v.
Superior Court, 20 Cal. Rptr. 2d 756, 766 (Cal. Ct. App.
1993)). Although the Veterans Court recognized an
implied-in-fact contract could be created by the parties’
conduct, id., it failed to consider that an attorney’s provi-
sion of legal advice may constitute the required conduct.
    Over a century ago, the Supreme Court of California
provided a broad standard for determining when an
implied-in-fact contract may arise between an attorney
and a client. It stated that “[w]hen a party seeking legal
advice[2] consults an attorney at law, and secures that


trols on the issue of whether an attorney-client relation-
ship existed.” Maj. Op. at 8.
    2   Neither the legislature nor the courts of California
have expressly defined what constitutes “legal advice.”
However, the California State Bar Committee on Profes-
sional Responsibility and Conduct has stated that legal
advice includes “that which requires the exercise of legal
judgment beyond the knowledge and capacity of the lay
person,” such as when an attorney “mak[es] a recommen-
dation about a specific course of action to follow.” Cal.
State Bar Comm. on Prof’l Responsibility & Conduct,
Formal Op. 2003-164, 2003 WL 23146203, at *4 (2003)
4                                         SNEED   v. MCDONALD



advice, the relation of attorney and client is established
prima facie.” Perkins v. W. Coast Lumber Co., 62 P. 57, 58
(Cal. 1900). In the decades that followed, the Supreme
Court of California and the California Courts of Appeal
have cited this passage favorably and expanded upon it in
deciding whether an implied-in-fact contract gave rise to
an attorney-client relationship. See, e.g., People ex rel.
Dep’t of Corps. v. SpeeDee Oil Change Sys., Inc., 980 P.2d
371, 379–80 (Cal. 1999); Beery v. State Bar of Cal., 739
P.2d 1289, 1293 (Cal. 1987); Benninghoff v. Superior
Court, 38 Cal. Rptr. 3d 759, 766 (Cal. Ct. App. 2006); Gulf
Ins. Co. v. Berger, Kahn, Shafton, Moss, Figler, Simon &
Gladstone, 93 Cal. Rptr. 2d 534, 542 (Cal. Ct. App. 2000);
Miller v. Metzinger, 154 Cal. Rptr. 22, 39 (Cal. Ct. App.
1979).
    SpeeDee is particularly instructive in assessing when
legal advice is sufficient to establish an attorney-client
relationship under Perkins. SpeeDee concerned “whether
an attorney-client relationship ha[d] reached a point
where the attorney can be subject to disqualification for a
conflict of interest.” 3 980 P.2d at 379. In that decision,
the California Supreme Court held that an attorney-client
relationship may arise from a preliminary consultation by



(internal quotation marks, brackets, citation, and footnote
omitted).
    3   Although SpeeDee did not address the existence of
an attorney-client relationship for purposes of attorney
abandonment, California courts have considered the
factors articulated in Perkins and its progeny in a number
of contexts. See, e.g., Streit v. Covington & Crowe, 98 Cal.
Rptr. 2d 193, 196 (Cal. Ct. App. 2000) (discussing Miller
in the context of legal malpractice). Indeed, the Veterans
Court relied upon Responsible Citizens in its analysis,
which concerned attorney disqualification for a conflict of
interest. See 20 Cal. Rptr. 2d at 761.
SNEED   v. MCDONALD                                        5



a prospective client who seeks, and receives, legal advice,
even though no formal agreement for representation
results. 4 See id. at 379–80.
     The Veterans Court committed error because it did
not consider whether the August 2, 2011 letter 5 from Ms.
Eagle to Ms. Sneed constituted legal advice sufficient to
establish an implied-in-fact attorney-client contract under
Perkins and its progeny. Indeed, the Veterans Court did
not discuss Perkins or SpeeDee in its analysis, see Sneed
III, 2014 WL 5365571, at *3–7, despite Ms. Sneed’s argu-
ment that her communications with Ms. Eagle resulted in
an attorney-client relationship, see J.A. 80 (Appellant’s
Memorandum of Law in Response to the Veterans Court’s
Order of Mar. 31, 2014, where she quoted Beery for the
proposition that, when “a party seeking legal advice
consults an attorney at law and secures that advice, the
relation of attorney and client is established prima facie”




    4   This conclusion is sensible in light of an attorney’s
duty under California law to advise individuals who
reasonably believe they are clients that they are, in fact,
not clients. See Butler v. State Bar of Cal., 721 P.2d 585,
589 (Cal. 1986).
    5   As the majority observes, in that letter
    Ms. Eagle provided an assessment of Ms. Sneed’s
    service connection claim, explaining her view that
    the claim “does not meet the criteria under 38
    C.F.R. § 3.312,” and concluded, “I do not believe
    the VA erred in denying your claim; thus, I will
    not be able to represent you for any subsequent
    appeal for entitlement to service connection for
    the cause of death, and for [dependency and in-
    demnity compensation] benefits.”
Maj. Op. at 3 (footnote omitted) (quoting J.A. 53).
6                                         SNEED   v. MCDONALD



(quoting 739 P.2d at 1293)). 6 Thus, because the Veterans
Court did not even consider whether the contents of the
letter in question amounted to legal advice sufficient to
establish an attorney-client relationship, 7 it applied an
improperly narrow legal standard in its analysis.
                            II.
    Despite the improperly narrow legal standard applied
by the Veterans Court, I agree with the majority that we
cannot assess the merits of Ms. Sneed’s claim for compen-
sation because Ms. Sneed did not diligently pursue her
right to appeal to the Veterans Court. Maj. Op. at 13.
Nevertheless, as the majority recognizes, Ms. Sneed may
have another remedy at her disposal. See id. at 7 (citing
Maples, 132 S. Ct. at 922) (explaining that, under general
principles of agency law, attorney malfeasance may give
rise to a malpractice remedy).




    6   The passage from Ms. Sneed’s Memorandum rais-
es doubt as to whether the Veterans Court’s properly
concluded that Ms. Sneed “d[id] not assert that Ms. Eagle
provided any advice to” her. Sneed III, 2014 WL 5365571,
at *6.
    7   To be sure, if the letter from Ms. Eagle stated only
that she would not represent Ms. Sneed, there would be
no dispute that an attorney-client relationship had not
formed between them. However, in addition to declining
to represent Ms. Sneed, the letter also contains legal
analysis and advice. J.A. 53–54. The additional content
suggests that Ms. Sneed sought legal advice from Ms.
Eagle and secured it, even though Ms. Eagle ultimately
declined to represent her. The additional content thus
warrants an analysis under Perkins.
