When your attorney’s negligence, incompetence or misconduct hurts your case, you might be able to recover some of the damages by filing a legal malpractice claim. And if you need to go this route, you don’t want to harm your case with additional mistakes.
To do things right, your first step is to file your claim before the deadline. Notably, this deadline varies, depending when you learn that your attorney’s wrongful act harmed your case. But if you fail to file within the statute of limitations, you may see your claim simply dismissed out of hand.
One year, four years or something else?
According to the California Code of Civil Procedure, the statute of limitations for filing a legal malpractice claim is either:
- One year after the discovery of the wrongful act or omission
- Four years after the wrongful act or omission
Whichever of these times comes first, it means an end to your filing period. But, of course, there are complexities and exceptions. An appellate court addressed several of these during an informative 2012 legal malpractice case:
- One exception is the explicit distinction between actual fraud and other wrongful acts. If an attorney defrauds a client, the client can pursue that matter differently, as an act of fraud. The court noted this exception in 2012 but found it didn’t apply to the case.
- Another exception accounts for “tolling” the statute of limitations. This is basically like hitting a pause button on the time limit. Your time limit pauses if the attorney continues to represent you on the same matter, if you haven’t yet suffered actual damages or your legal or physical condition prevents you from filing. If your attorney conceals the wrongful acts at the center of your malpractice claim, that tolls your four-year time limit.
- Finally, your one-year timer doesn’t start until you discover the wrongful act or omission. Here, it’s important to understand what “discovery” means. As the court noted in 2012, your timer doesn’t begin with the discovery that your attorney’s conduct might count as malpractice. It begins with the discovery of the underlying facts of the wrongful act or omission.
This last point is important. It says essentially that your timer starts when you learn something smells bad, not when you learn the source is a rotten fish. You don’t want to wait until you’re certain you’ve got a legal malpractice case before you speak to an attorney about it. You want to get advice as soon as you learn about failures or wrongdoing that you suspect may be grounds for a malpractice.
The timer might start earlier than you think
Importantly, the 2012 case clarified another point about when you can file a legal malpractice claim. You can suffer harm due to your attorney’s wrongful acts or omission before a case is even finished. If your attorney’s malpractice erases or limits your rights or legal remedies, the court can recognize that damage.
Accordingly, it’s possible to envision a situation where a business owner would file a malpractice claim even before resolving the underlying concern. And the timer on that claim would start when the business owner discovers the wrongful act or omission, not when the first matter has settled.