Are We Out of the Woods Yet? Statutes of Limitations for Legal Malpractice Claims

If you’re coming across this post, chances are that you’ve just Googled something like, “what is the statute of limitations for legal malpractice claims?” At the risk of using every lawyer’s favorite answer — it depends! There are multiple factors to look for that might affect the timeframe for a legal malpractice claim. 

However, you didn’t come to this blog for legal advice or a 50-state survey on statutes of limitations. So first, let’s address why you’re here. Perhaps you’re in the process of bringing a malpractice claim against an attorney, and doing the very important initial research of finding out your client’s deadline, so you can enter it into your calendaring system right away with multiple reminders leading up to said deadline to make sure you file suit well before the statute runs out. If so, job well done in taking the steps to avoid running into your own claim for malpractice! 

Maybe you’re here because you recently ended a problematic client relationship and are wondering how long you have to worry about the unhappy client trying to assert a claim. Unfortunately, a pesky thing like a statute of limitations does not always prevent litigants from bringing claims, and there are a variety of circumstances that might extend the possible timeframe for them to do so. 

Or, the worst-case scenario is that you’re here because you’ve found a mistake. Maybe this mistake occurred quite some time ago, and you aren’t sure if you’re out of the woods or what to do next. The answer: Call your insurance carrier. You should always report these situations to us, no matter how long ago the actual error occurred. Your state’s bar counsel or ethics hotline is usually a great additional resource for determining how to address these issues with your current or former clients. 

While each state’s laws vary, here are some factors that might affect the length of time you could be susceptible to a claim based on a past error, and ways to prevent certain factors from coming up in future matters.

Tort Claims: The obvious starting point for malpractice is each state's statute of limitation on tort claims. Some states specifically identify a limitation for actions against attorneys or professionals, but in others, the limitation on standard negligence claims applies.

Contract Claims: Some states treat a legal malpractice claim as an action arising from a contract instead of a tort, which usually provides a litigant with a longer timeframe. Some other states allow a claim under either theory but often require proof of a specific breach of a contract term, rather than a failure to meet the standard of care, in order to support a claim arising from a contract. A well-crafted engagement letter, one that clearly describes and appropriately limits the scope of representation, while reminding the client that no particular outcome is guaranteed, is hugely important. If you’re looking for hints, the ALPS website has some examples here. 

Typically, the statute of limitations for a claim based on a written contract is longer than an implied or verbal contract. That said, neglecting to enter a written engagement agreement altogether is not an advisable way to outsmart the statute. While it might seem unfair that the prudent practice of entering into written contracts can potentially leave you vulnerable for a longer period of time, this does not outweigh the variety of other risks that come from not using an engagement letter. 

Continuing Representation: If an attorney makes a mistake but continues to have an ongoing relationship with the client, in some states this continuing representation can toll the statute of limitations. Whether this relationship exists is not always clear. Make it clear by sending a closure or “disengagement” letter at the end of any particular matter. This is a step many attorneys overlook, which can lead to confusion about the existence of an attorney/client relationship, the scope of representation, and conflicts of interest, leaving you more vulnerable to a claim, and for a longer period of time. 

Discovery Rule: Some state laws provide that a malpractice claim accrues on the date the error occurs. However, many states provide that a claim doesn’t accrue until the client discovers, or should have discovered the error. In some, the claim does not accrue until the client suffers harm or damages due to the error. Perhaps you’ve discovered that a contract you drafted years ago contains a provision that could cause your client harm in the future. In some states, regardless of when the contract was drafted, the statute of limitations does not begin running until the harm occurs. 

Some states do have a statute of repose to counteract this, putting a hard deadline on claims arising from errors that occurred before a certain date, regardless of when the error or damage was discovered. Of course, if the client’s only reason for not discovering the error is that the attorney actively concealed the error from the client, relying on the statute of limitations OR the statute of repose is not likely to be an option. It should go without saying that if you discover your own error at any point, hiding it from your client, your colleagues, or your insurance carrier is not a good plan. 

I know that it can be incredibly stressful to worry about a potential claim looming for years on end. Again, if you have discovered an actual error, call ALPS and seek out state bar resources to help you determine how to appropriately address it, no matter when the error occurred. If you have other reasons to be concerned about a claim, like an antagonistic or dissatisfied client, take the steps to document the end of the attorney/client relationship to prevent any questions about continuous representation. It might be a long time before you’re “out of the woods,” but you can always breathe easier knowing you took steps to mitigate harm and to meet your ethical obligations.