Does the statute of limitations for legal malpractice place clients at an unfair disadvantage?

What is a statute of limitations? Every cause of action that you might have against another person, company, or governmental agency must be brought within a certain time limit. This time limit is created by law. This limit is an artificial legal creation, and the technical term is “statute of limitations.”

The litigation question that should be the easiest question to answer– what is the statute of limitations for a particular cause of action– is often a complicated mess. It is surprising how many cases rise or fall on a determination of the applicable statute of limitations.

If you go to Google Scholar, select your state court, and do a simple search on “statute of limitations”, you will likely see thousands of cases where the issue is at least mentioned.

There is another significant yet little known problem regarding the statute of limitations for legal malpractice: in some states, the statute of limitations for legal malpractice is substantially less than the statute of limitations that an attorney has to bring a breach of contract claim for legal fees against the client. What this means is that in some states an attorney can wait until the day after the legal malpractice statute of limitations expires, and then file a lawsuit against the client for claims related to legal fees with at least a certain level of confidence that the attorney will not be subject to legal malpractice counterclaims in return.

Every state has different limits for causes of action. For example, currently (as of May 31, 2013), the statute of limitations for legal malpractice is six years in New Jersey, three years in New York, three years in Connecticut, and two years in Pennsylvania.

In addition, because the statute of limitations is set by law, the law can change at any time. For example, when I wrote this (in 2013) there was proposed legislation in New Jersey to reduce the legal malpractice statute of limitations to two years. That law did not pass (but it could have). At one time, the statute of limitations for legal malpractice in New York was six years. Although statutes of limitations do not change that frequently, it does happen and therefore even if you were told by an attorney at a particular time as to the length the statute of limitations, it is possible that could change.

It is always a good idea to get a legal opinion about your potential legal malpractice action as soon as possible. If your case is not brought within the statute of limitations, then no matter how good a case you have, you will lose.

It is also important to realize that if you are considering litigation or have concerns about the representation you received from an attorney, it may take some time for a legal malpractice attorney to evaluate your case. If a legal malpractice complaint is merited, it takes time to draft a complaint. What that means is although there is a statute of limitations imposed by law, it is still your responsibility to bring the case to an attorney sufficiently in advance of the statute of limitations so that the proper procedures can be followed in your state for preserving the statute of limitations.

The unfairness that exists at least in some places is that most states have a six-year statute of limitations for breach of contract. In states that have less than a six-year statute of limitations for legal malpractice, this means that your claims against the attorney may expire before the attorney’s potential claims against you expire. For example, in Connecticut, breach of contract currently has a six-year statute of limitations. Legal malpractice claims currently have a three-year statute of limitations. As noted, in such a situation, an attorney could file a breach of contract claim against you for overdue fees the day after the statute of limitations expires for legal malpractice, and then you will be barred from bringing a counterclaim for legal malpractice (unless there is an exception tolling statute of limitations for you, which I will address in another post).

The closer your case is to the statute of limitations, the more likely it will be difficult to find an attorney who is willing to take your case. Of course that depends upon specific facts of your case, the complexity, and the attorney’s current schedule, but procrastination is never a good idea when it comes to legal malpractice claims.  This is especially true in states where the statute of limitations is longer for breach of contract or fee dispute claims than it is for legal malpractice.

If you have concerns about how you are represented, and there is any chance that you might bring a legal action against the attorney, having the facts of your case reviewed by an attorney sooner rather than later is usually good practice. Sometimes it even makes sense to get a second opinion of another attorney while you are being represented by the first attorney.

The reason I believe that a disparity in statutes of limitations for claims between attorneys and clients is unfair is because the issue of whether legal fees are due to an attorney often involves questions about the quality of representation. While these issues potentially could be raised after the legal malpractice statute of limitations expires as a defense to a claim for fees, again depending on the circumstances, it is likely you would not be able to recover consequential damages for legal malpractice even if questions about the quality of representation reduced or eliminated the legal fees being sought.

Author: Howard Altschuler

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2013 By Howard Altschuler, All Rights Reserved