Is Your Legal Malpractice Claim Barred by a Statute of Limitations? Make Sure You Preserve Your Valuable Claims.
September 06, 2016By Brent Silverman and Ashtyn Saltz You are the CEO of a closely held company and you suspect your attorney has made a mistake that either caused a major deal to collapse or resulted in important litigation being lost. Is your lawyer to blame? Whether or not your lawyer is responsible, and whether or not you even suspect that his or her negligence may have caused you harm, the clock may be ticking on a legal malpractice claim. One of the first considerations of any businessperson considering legal malpractice should be how long does my company have to seek a remedy for the harm potentially caused by its attorneys? Over the years, we have sadly turned away numerous, potentially meritorious legal malpractice claims because the client waited too long before bringing it to our attention. The statute of limitations is one of the most common defenses asserted by lawyers and law firms when facing legal malpractice claims, and can be successfully raised to defeat otherwise meritorious claims. Time is of the essence. Statutes of limitations obviously limit the amount of time you have to file a claim. The policies behind these statutes include the stipulation that plaintiffs should pursue claims with reasonable diligence, and that evidence may be lost over time if plaintiffs sit on their claims. These statutes vary widely from state to state and from claim to claim. The application of the statute of limitations is further complicated by various doctrines that may be used to “toll” (pause or delay) or even extend the statute of limitations, such as the discovery rule or continuous representation doctrine. Experienced counsel is invaluable in helping you navigate all of these differences and nuances. Here are a few examples. In New York, a legal malpractice action must commence within three years from accrual. New York courts typically find that the three-year period begins on the date of the act or omission constituting the malpractice. In New York, there is no discovery rule that can be used to extend the three-year period. In other words, the clock is ticking on your claim whether or not you are even aware of the existence of the malpractice. However, your claim may still be timely even if three years have passed, because in New York courts toll the statute of limitations during the period of continuous representation after the malpractice was committed. Furthermore, you generally are not required to sue your attorney while they are still representing you on the same matter that gave rise to the malpractice claim. However, the continuous representation doctrine will typically not act to extend the statute of limitations if the attorney continues to represent you in a different transaction or litigation matter. Comparatively, Ohio has a shorter statute of limitations, requiring legal malpractice claims to be brought within one year of the claim accruing. But unlike New York, the statute of limitations does not begin to run in Ohio until the client discovers, or should have discovered, that the injury was related to their attorney’s conduct, and the client is put on notice of a need to pursue possible remedies against the attorney. Similarly to New York, the statute of limitations in Ohio does not begin to run until the attorney-client relationship for that particular transaction or undertaking terminates. The District of Columbia has a three-year statute of limitations which can be extended by both the discovery rule and the continuous representation doctrine. So, even if you think your potential claim is untimely, the discovery rule, in combination with the more generous three-year statute of limitations, could render your claim timely. While New York, Ohio, and the District of Columbia are just a few of the jurisdictions in which you may find yourself in court, they are representative of the complicated and varied web of statute of limitation law for legal malpractice claims. A statute of limitations inquiry may be further complicated by yet other factors, including borrowing statutes, which require that courts borrow the statute of limitations law of another state under certain circumstances. These are the types of matters that require retaining counsel to handle your legal malpractice claim who have dedicated experience in many different states on matters of legal malpractice. The most important thing to do if you suspect legal malpractice is to immediately consult counsel to make sure your potentially valuable claims do not become time-barred. At Kaufman & Company, our attorneys have a deep bench of experience in assessing and litigating statute of limitations issues in the most complicated legal malpractice cases, and in jurisdictions throughout the country. Contact us to learn more about our experience with legal malpractice cases and to explore whether or not you may have potentially meritorious malpractice claims, before time runs out.