Monday, May 17, 2010

Legal Malpractice- More Special Treatment for Lawyers

More special treatment for lawyers- the Legal Malpractice Statute of Limitations

The statute of limitations sets the time deadline for filing a lawsuit. If you don’t file your claim in time you will be barred from filing suit. To understate, this statute is a big deal.

In PA, the statute of limitations (“SOL”) is two years for most any claim based in tort or negligence. Claims for breach of contract can be brought within four years of the breach. Claims of defamation carry a one year SOL. And, there are some statutory claim exceptions.

For just about any legal claim, the statute of limitations does not begin to run until harm is realized. This is called the “discovery rule,” i.e. the clock does not begin to tick until you discover the harm that has been done to you. This makes sense.

The one exception to this standard application of the SOL is claims for legal malpractice. The PA Superior Court has determined that a cause of action for legal malpractice begins to run from when the negligence occurred, or at least when the plaintiff could have known of the attorney’s breach, even if that is before any harm actually occurred. Wachovia Bank, N.A. v. Ferretti, 2007 Pa. Super. 320 (2007). So if your attorney drops the ball early in the case but the harm the mistake caused does not become apparent until much later- too bad for you.

Even more ridiculous is that the appeal of the underlying action upon which the claim of malpractice is based does not operate to toll the SOL. Robbins & Seventko v. Geisenberger, 449 Pa. Super 367, 674 A. 2d 244 (1996). And continuous representation by the attorney tolls the SOL. Glenbrook Leasing Co. v. Beausang, 839 A.2d 437 (Pa. Super. 2003).

This interpretation of the law encourages two problematic situations.

First, it promotes dubious representation practice by attorneys that know they have screwed up. For example, as an attorney, if I realize I have made a mistake that could damage my clients mistake it is to my benefit to ignore the matter and allow the case to run on until such time as the SOL has passed thus barring my client’s claim against me.

Second, it forces clients to institute lawsuits against their attorneys while that same attorney is still representing them in the underlying matter. It is not hard to imagine how awkward this is. It would also concern me as a client that the underlying attorney might not represent you as zealously as he/she did before you sued them.

This exception to the statute of limitations puts clients at too great a disadvantage. As a client, no one is going to tell you about this exception to the rule. The standard “discovery rule” makes common sense. I see no reason why it should not be applied to legal malpractice the same way it is every other type of lawsuit. Share this post :
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