Legal Malpractice Statutes of Limitation: Overview and Pennsylvania Case Study
Christof, Joseph S. D., Farrar, Brett W., Flynn, Michael P., Defense Counsel Journal
THE TIME PERIOD permitted for clients to bring a legal malpractice action against their attorneys varies from state to state. Further, the principles of law upon which various states base their statutes of limitation fluctuate between legislative enactment, breach of contract and tort. While the majority of jurisdictions clearly set forth the time period by which the legal malpractice plaintiff must file his claim, a small number continue to be jurisdictions where artful pleading can, arguably, improperly extend the limitation period for legal malpractice claims. This article provides a jurisdictional summary of legal malpractice statutes of limitation, and focuses on one jurisdiction, Pennsylvania, which has not clearly defined the applicable statute of limitation for legal malpractice claims and the confusion currently existing in Pennsylvania jurisprudence as a result of this failure.
1. An Overview of Legal Malpractice Statutes of Limitation
A majority of jurisdictions have clearly articulated the statutory time period whereby a plaintiff is required to bring a legal malpractice cause of action, either by legislative enactment or by judicial determination by cause of action (negligence or breach of contract) to which the corresponding statute of limitation applies.
Thirty-six of fifty-one jurisdictions (including the District of Columbia) have enacted statutes which specifically provide limitation periods for causes of actions against legal service providers or simply assign legal malpractice actions to the "catch-all" limitation period. Those jurisdictions are: Alabama, California, Colorado, Delaware, District of Columbia, Florida, Hawaii, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Washington, Wisconsin and Wyoming.1
Some jurisdictions characterize legal malpractice claims as a derivative of either negligence or breach of contract and thereafter assign the corresponding limitation period. For example, four jurisdictions, Arkansas, Missouri, Oklahoma and Texas, have determined that legal malpractice is based in negligence, and therefore a negligence statue of limitation applies.2 Two jurisdictions, Iowa and Virginia, conclude that legal malpractice sounds in breach of contract, and a statute of limitation for breach of contract applies.3
Alaska and Vermont analyze the nature of the injury to determine the applicable statute of limitation. In these jurisdictions, distinctions are made between personal injury and economic loss. For example, in Alaska, a two (2) year statute applies if the malpractice caused personal injury or injury to the reputation, but a six (6) year statute applies if the malpractice caused economic loss.4
Other jurisdictions have not provided rules with the same clarity as the states noted above. In these remaining jurisdictions, both negligence and breach of contract statutes of limitation are in play when considering a legal malpractice cause of action. Three jurisdictions, Arizona, Connecticut and Kansas, have determined that in a legal malpractice action both a negligence statute of limitation and breach of contract statute of limitation are considered. In these circumstances, in order for the breach of contract statute of limitation to apply, there must have been specific instructions given to the attorney which the attorney failed to perform.5
Finally, Georgia, Mississippi, Pennsylvania and West Virginia offer a significant advantage to plaintiffs in legal malpractice actions. In these jurisdictions, the plaintiff is permitted to assert claims in negligence, contract or both and take advantage of whichever statute is longer.6 There are no restrictions based on the nature of the injury. Moreover, there is no caveat that a failure to follow a specific instruction must be alleged in order to assert a breach of contract claim and have the benefit of a different statute of limitation associated with such claim. …