What is Legal Malpractice?
Legal malpractice broadly refers to the legal negligence of an attorney or law firm that causes harm to a client. It is the specific area of law that focuses on seeking justice for clients who have suffered losses as the result of negligent professional service. When an attorney fails to act as an ordinary, reasonably prudent attorney would under similar circumstances, it can be considered legal malpractice. When this occurs, the client has every right to seek an explanation and restitution for their loss. Experienced legal malpractice attorneys are able to assess what went wrong in your case and determine if you do in fact have grounds for a legal malpractice claim .
Common types of legal malpractice include: failure to file a claim before the applicable statute of limitations expires, failure to inform the client of the underlying case’s progress, or failure to convey settlement offers; failure to obtain a jury instruction that could have resulted in the client’s success at trial; conflict of interests; improperly advising the client; and failing to communicate with the client.
Legal malpractice occurs in a variety of situations and areas of law, such as, bankruptcy, business law, domestic relations, elder abuse, employment law, estate planning, criminal law, environmental law, medical malpractice, personal injury, real estate, securities, tax controversy and workers compensation.
The Statute of Limitations
A statute of limitations is a law that sets a strict time limit for individuals to initiate legal proceedings. The purpose of these statutes is to encourage individuals to seek redress in a timely manner, ensuring that evidence is preserved, and that litigants are not burdened with defending against stale claims. Statutes of limitation are referred to as "statutes of repose" because they protect defendants from having to face liability problems with respect to events long past. The statutes establish the period in which a plaintiff must bring a lawsuit following the allegedly wrongful act. In California, the statute of limitations (as applied to legal malpractice) is two years following the date on which the wrongful act or omission was discovered, or reasonably should have been discovered. Civil Procedure Code section 340.6(a); S.F. Unified Sch. Dist. v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318, 1322. If the plaintiff can prove to the court, however, that he or she did not discover and, with reasonable diligence, could not have discovered his/her malfeasance after the allegedly negligent act or omission, then the court may grant an extension of the statute of limitations. Civil Procedure Code section 340.6(c)(1). The burden, however, is on the plaintiff to show that the statute of limitations should be tolled. Wollersheim v. Church of Scientology (1983) 142 Cal.App.3d 354, 384. "Discovery" in the context of legal malpractice actions is defined as the date plaintiff knows or through the use of reasonable diligence should know that the defendant attorney’s conduct "bit him." Fox Pearson & Amanda v. Crane (1935) 53 Cal.App.2d 135, 168. The date of discovery is generally considered to be the date the plaintiff suffered actual damages as a result of the alleged wrongful conduct. Tahoe Sierra v. Tahoe Regional Planning Agency (9th Cir. 2004) 216 F.3d 764. However, the mere suspicion of a potential cause of action does not qualify as actual or constructive discovery. Laird v. TBS Productions, Inc. (1983) 149 Cal.App.3d 283, 290. Although the issue of discovery is a question of fact to be determined by the trier of fact, the court may determine it as a matter of law when no other reasonable inference can be drawn from the evidence presented. Fox, supra, 53 Cal.App.2d at 148. Almost all civil actions in California are subject to a statute of limitations codified in the California Code of Civil Procedure. However, there are some specific causes of action that are governed by substantive statutes. For example, the Family Code contains certain enforcement actions and presumptions of parentage. They are not commonly encountered by practitioners but they are worth mentioning.
California’s Special Statute of Limitations
California has a four-year statute of limitations. See CCP § 312.1. However, there is a list of exceptions to this general rule. California Civil Procedure Code Section 340.6 lists the statutory period as one year or two years, whichever is longer, with the clock starting upon the actual discovery of the facts constituting the wrongful act or omission, which means when the plaintiff actually becomes aware of the error resulting in the harm.
Particularly with legal malpractice actions, a client’s claim relates back to the attorney’s representation that formed the basis of the underlying claim. Therefore, the statute of limitations for the legal malpractice claim is interpreted to run from the time on which the plaintiff, through that same set of facts, knew or reasonably should have known that the attorney committed malpractice.
The tolling doctrine makes an exception to the legal malpractice statute of limitations. The statute of limitations will be tolled until the final disposition of the underlying action in an appellate court if: (1) a new attorney is substituted into the action; and (2) a notice of appeal is filed in the appellate court. See Merlino v. Baird 178 Cal. App. 4th 1020 (2009). This means that the statute will be tolled at least through the disposition of the appeal, and possibly longer, depending on the circumstances.
Tolling and Discovery Rule Exceptions
Tolling and the discovery rule both have their basis in policy considerations. In California, both concepts apply to malpractice causes of action, including legal malpractice cases. In some respects, these are two sides of the same coin, as any failure to discover a fact supporting a cause of action will extend the time period for the plaintiff to file the action against the defendant. However, while the policy considerations that support the tolling and discovery rules are similar, they have different evidentiary requirements.
The doctrine of "tolling" or "equitable tolling" provides that the statute of limitations is tolled (or paused) while an injured party diligently pursues an alternate remedy. This equitable doctrine reflects the principle that, generally speaking, a party that initiates a judicial or administrative proceeding against a defendant is not required to simultaneously file a lawsuit against that defendant for the same conduct. By extending the statute of limitations for a short time, California courts try to balance the need of providing a defendant with prompt notice of litigation against the need of an injured party to have enough time to investigate his or her options before filing suit .
Although the discovery rule and tolling are similar, the evidentiary showing required differs. A plaintiff seeking to interpose a tolling argument must prove certain facts to invoke the equitable remedy. A plaintiff must show that he or she was diligent in pursuing a concurrent remedy and that the defendant will not be prejudiced by the tolling. For example, if the plaintiff has filed a complaint in an administrative proceeding naming a defendant tortfeasor, the plaintiff should be able to recover all damages caused by the defendant tortfeasor at the same time.
The discovery rule tolls the statute of limitations until the causes of action are discovered or until the plaintiff is "on inquiry," which occurs when the plaintiff suspects or has reason to suspect that he or she has been wronged in a date specific manner. Even under the discovery rule, however, California courts require a plaintiff to show diligence in pursuing his or her legal remedies: so a plaintiff who is not diligent may not avoid the statute of limitations by simply claiming ignorance.
tolling and discovery rule exceptions are the exception and not the rule. If you believe that you have sustained damages due to your attorney’s negligence, delay in acting on your belief may be fatal to your recovery.
Consequences of Missing the Statute of Limitations
When a plaintiff misses the statute of limitations period to file a legal malpractice claim against his or her former lawyer, the result is nearly always that the malpractice case is lost and the former client gets no further day in court. When a matter is dismissed by the trial judge for failure to file on time, the plaintiff cannot then successfully bring the same matter against the attorney before the second judge. Often, the facts of legal malpractice cases are of such a nature that there are numerous and concurrent legal issues as well as a drum roll of other attorneys involved once the lapse of time is reached. Each of these attorney and law firm defendants has their own insurance policies or assets that might give rise to a claim for damages. At every turn the missing of the statute of limitations does not stop the near limitless number of cross complaint attorneys and line up of insurance defense lawyers and law firms waiting in line to take on the case.
What to do if you suspect legal malpractice
If you suspect that your attorney has committed legal malpractice, the next step is to take action. While it may be difficult for you to find the time to speak with a new lawyer, be aware that all of the following steps are time sensitive.
- First, check to see whether you have any pending deadlines. Are there any hearings or depositions scheduled? You may wish to cancel those immediately if your attorney has agreed to attend them for you. Failure to do so may cause you to suffer further loss in the underlying case that is the source of the malpractice.
- Assemble all of your documents regarding the case at issue. Did you sign any fee agreements? Are there emails from your attorney regarding the case? Be sure to keep copies of everything in a safe location. You will need these when it comes to filing suit.
- Next, make an appointment with a new attorney who specializes in legal malpractice. It is wise to minimize the number of people you expose to the confidential information regarding your legal malpractice issue. Be sure to let your new attorney know that he must maintain strict confidentiality regarding the existence of your legal malpractice claim.
- When you actually meet with your new attorney , bring all documents relating to the underlying case. Keep in mind that even if you send copies of your documents regarding the underlying case to your new attorney, he or she will not be able to review them until your former attorney has given permission to do so. While this may be difficult at first to understand, it is necessary because of the attorney client privilege, and is the only way that your new attorney can ensure that he or she does not inadvertently "steal" your former firm’s "clients." The attorney client privilege is designed to protect confidential communications, but it also sometimes operates to protect the attorney’s "commercial" rights in the files he or she created from theft by another attorney.
- You may also face a tight deadline for filing suit, so a prompt meeting is in order. Solidified consultation with a new attorney will not only help you ascertain whether a cause of action exists, it will help you determine the deadline for filing suit.