Continuous Representation and the Statute of Limitations in Legal Malpractice
It can be complex to assign a definite date to the "mistaken act or departure."
February 14, 2020 at 11:45 AM
11 minute read
Time moves on, positively kinetic in retrospect. Stale claims in the legal world are disfavored and have been since at least the Bible. (Deuteronomy 15:1-3). With the passage of time, memory dims and evidence tarnishes. The statute of limitations in legal malpractice cases is often thought of as a stout wall. Hard to get over; impossible to get around.
Plaintiffs are given three years to commence an action for legal malpractice after a wrong is committed or they are barred forever. The statute commences at the mistaken act or departure, not when it is discovered. It does not matter whether plaintiff knows of the malpractice; there is no discovery delay of its onset. The only dispensation is that commencement may be tolled pursuant to continuous representation.
That being said, it can be complex to assign a definite date to the "mistaken act or departure." Observing that the statute is three years is simply the beginning of the calculation. Determining the onset of the legal malpractice statute of limitations is enormously complex. When the clock starts to run depends on multiple considerations including the date and type of the mistake, whether that mistake immediately causes problems and the maturing of an actionable injury. To further complicate the question there is equitable tolling and equitable estoppel and fraudulent concealment.
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