Determining the Legal Malpractice Statute of Limitations
In consulting with a lawyer about a legal malpractice claim, one of the first things that the attorney will look at is the statute of limitations. The statute of limitations in Virginia may vary depending upon the agreement you had with the attorney. If the agreement was in writing and signed by the attorney then the statute of limitations may be five (5) years. If the agreement was not in writing or signed by the lawyer then the statute of limitations may be three years. This can be a tricky issue. You should seek legal help to define what your limitation period is.
Suppose the lawyer did not sign the retainer agreement. Or better yet suppose the lawyer only signed on behalf of the firm and not himself. You could thereby be in a situation where the limitation against the lawyer is three years and the limitation against the firm is five years. The point to be made is these are tricky questions that need to be addressed by an experienced attorney.
Legal Malpractice Statute Limitations-Continuing Representation Rule
Sometimes the difficult issue in determining the statute of limitations is exactly when the statute began to run.
If the attorney continued representing you for some period of time after the alleged negligent act then the statute may not begin to run until that representation ends. That becomes a complex issue. The representation must have been for the same matter for which you are claiming legal malpractice.
This continuous representation rule is a rule fashioned by the courts, not by the legislature. As such the rule is probably going to be strictly construed. If the first representation has ended and a new representation on a different matter has begun, then the statute of limitations may begin to run when that first representation ends. Smith Development, Inc. v. Conway, 79 Va. App. 360, 373 (2024)
One thing that cannot be overemphasized is that if you think you have a basis for a legal malpractice claim, you need to move quickly. Determining exactly when the statute began to run can be a tough issue. You should not assume that because the representation by the attorney has continued that therefore the statute has not begun. It may be the statute began to run when the attorney committed the negligent act. That is, when she breached the duty that was owed to you.
If the attorney is handling several different matters for you the continued representation as to the other matters may not stop the statute from beginning to run.
Attorney Negligence-Claims Made Policies
Many professionals have claims made policies. That applies to doctors and lawyers. A claims made policy means the coverage kicks in when the claim is made against the professional person. The claim may be made by submitting a letter saying a claim is being made without specifics. If that claims made policy expires then the professional person may get tail coverage. Tail coverage extends the policy period for a claim to be made. If the professional converts to an occurrence policy without getting tail coverage and the claim is made after the occurrence policy kicks in then there may be no coverage for your claim. The point to be made is you may not know the type of coverage the professional has. Therefore, make your claim promptly. Do not delay.
Legal Malpractice Statute Limitations-Different Jurisdictions
The issue of the statute of limitations can be further complicated in the DC area where many attorneys practice in DC and Maryland. If that is the case then it may be that any lawsuit against the lawyer could be brought in either of those states. The statute of limitations for that jurisdiction may be the one that controls. You may have a case where the statute for Maryland is what controls as to the claim brought in Maryland but the substantive law of Virginia applies to the merits of the claim. All of that becomes complex and requires some prompt expert analysis.
Settlement
Settlement of these cases can be tricky. Settling with one party may release other parties. To protect your case you may need to insert language that says no other parties are released and have those other parties approve such.
There are several other blogs on this site dealing with different aspects of legal malpractice:
- who to sue
- proving relationship
- substandard behavior
- causation damages
- how to find a legal malpractice lawyer
- case within case
Call, or contact us for a free consult. See the other pages on this sitefor a review of Virginia case law on this subject.
For more information on legal malpractice see the paes on Wikipedia.
