Understanding the Statute of Limitations and Legal Malpractice
Legal malpractice occurs when an attorney fails to provide the standard of care that a reasonably competent attorney would offer, resulting in harm to the client. This can be particularly challenging to address due to the statute of limitations, the legal timeframe within which a lawsuit must be filed. Missing this deadline can result in the dismissal of the case, leaving the client without recourse.
The Statute of Limitations Explained
The “Statute of Limitations” (“SOL”) is a term in the law that simply means the amount of time a person has to bring a lawsuit. If you wait too long to sue and the SOL has expired, the lawsuit will be dismissed by the judge. Each state has its own set of rules and its own SOL dictating how long you have to sue your lawyer for legal malpractice. It can get complicated trying to figure out exactly when the SOL started and each state law is different on this subject. For example, in Tennessee, a client has one (1) year to sue his or her lawyer and the one-year period starts to “run” when the client “knew or should have known that the lawyer committed legal malpractice. If your lawyer sends you a letter that tells you that he or she committed legal malpractice and you wait a one (1) year and one (1) day to sue for legal malpractice, you will lose your case and a judge will dismiss the lawsuit because the SOL has expired before you filed the lawsuit. So, timely filing a lawsuit is critical to brining a successful legal malpractice lawsuit.
To make matters more complicated, many states have various exceptions that “suspend” or “toll” the running of the SOL. For example, if your lawyer “fraudulently concealed” his or her malpractice from you, the SOL will not start to run and you will get one (1) year from the date that you first learned about the malpractice to file a lawsuit. In addition, in many states, a lawyer could become subject to punitive damages for trying to conceal or cover up a legal malpractice claim. The following is a brief overview of the SOL in states that we normally handle legal malpractice cases. However, please use caution when viewing this information. State laws can change very quickly and frequently. These laws can change faster than we can update this website. As a result, please use this section of the website as a general guide but please consult with a lawyer at the firm (or at another firm) before you make any decisions about your case based on the information below. The lawyer will be able to tell you definitely if the law is still valid and any exceptions that might apply to your particular case.
TENNESSEE
Tenn. Code Ann. § 28-3-104
The Tennessee Statute of Limitations for legal malpractice is one (1) year from the date that the cause of action accrued. The cause of action “accrues” when the client knew or in the exercise of reasonable care and diligence should have known that an injury has been sustained as a result of wrongful or tortious conduct by the lawyer. This “knew or should have known” standard is somewhat subjective and is called the “discovery rule.” The discovery rule is composed of two distinct elements: (1) the plaintiff must suffer legally cognizable damage, an actual injury, as a result of the defendant’s wrongful or negligent conduct, and (2) the plaintiff must have known or in the exercise of reasonable diligence should have known that this injury was caused by the defendant’s wrongful or negligent conduct.
In Tennessee you can “toll” or stop the running of the SOL by fraudulent concealment by the lawyer. To prove fraudulent concealment, four elements must be present: (1) the defendant must have affirmatively concealed the plaintiff’s injury or failed to disclose material facts regarding the injury or wrongdoing, despite a duty to do so; (2) the plaintiff must have been unable to discover the injury or the identity of the wrongdoer despite using reasonable care and diligence; (3) the defendant must have known the plaintiff had been injured; and (4) the defendant must have concealed material information from the plaintiff by withholding information or making use of some device to mislead the plaintiff.
MISSISSIPPI
Miss Code Ann. § 15-1-49
The Mississippi Statute of Limitations for legal malpractice is three (3) years from the date that the client learns or through reasonable diligence should have learned of the legal malpractice.
Fraudulent concealment will toll or stop the running of the SOL but the client must prove: (1) some affirmative act or conduct was done and prevented discovery of a claim; and (2) due diligence was performed on the client’s part to discover it.
ALABAMA
Code of Ala § 6-5-574
The Alabama Statute of Limitations for legal malpractice is two (2) years. The actual statute states: (a) All legal service liability actions against a legal service provider must be commenced within two (2) years after the act or omission or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided, further, that in no event may the action be commenced more than four years after such act or omission or failure; except, that an act or omission or failure giving rise to a claim which occurred before August 1, 1987, shall not in any event be barred until the expiration of one year from such date.
Fraudulent concealment is statutory. Code of Ala. § 6-2-3 states that in an action seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two years to prosecute his action.
ARKANSAS
Ark. Code Ann. § 116-56-105
The Arkansas Statute of Limitations for legal malpractice is three (3) years but the SOL begins to run upon the occurrence of the wrong. There is no discovery rule unless the lawyer fraudulent conceals the misconduct.
Arkansas has historically been a difficult state to bring a legal malpractice case because there was no discovery rule. This basically meant that a lawyer could not tell the client that something bad had happened in their case (because of legal malpractice) and, if that lawyer could drag the matter out for three (3) years, the client could not successfully sue the lawyer for legal malpractice. Thankfully, however, the Arkansas Supreme recently corrected this unjust rule in the case of Nichols v. Swindoll (Ark. Oct. 2023). The Nichols Court basically said that a lawyer’s silence amounts to a positive act of fraud because there is a confidential and fiduciary relationship between attorneys and their clients. So, an Arkansas lawyer now has to tell his or her client they committed legal malpractice or the lawyer risks having a judge conclude that the statute of limitations was suspended because of fraudulent concealment.
GEORGIA
Ga. Code Ann. § 9-3-33
The Georgia Statute of Limitations for legal malpractice is two (2) years from the time that the right of action accrues. The cause of action “accrues” when the client knew or in the exercise of reasonable care and diligence should have known that an injury has been sustained as a result of wrongful or tortious conduct by the lawyer.
Ga Code Ann. § 9-3-96 states that if the client was deterred from taking action against the lawyer because of his fraud, the two (2) SOL starts to run from the date that the client actually discovered the fraud.
In order to prove fraudulent concealment, a client must prove: (1) some affirmative act or conduct was done and prevented discovery of a claim; and (2) due diligence was performed on the plaintiff’s part to discover it.
MISSOURI
Mo. Rev. Stat. § 516.120
The Missouri Statute of Limitations for legal malpractice is four (4) years from the time that the right of action accrues, meaning when the damage resulting from the alleged legal malpractice is sustained and is capable of ascertainment. The test for accrual of a cause f action is objective.
Fraudulent concealment will not work to toll or stop the running of the SOL.
KENTUCKY
KRS 413.245
The Kentucky Statute of Limitations for legal malpractice is one (1) year. Specifically, the statute states: a civil action, whether brought in tort or contract, arising out of any act or omission in rendering, or failing to render, professional services for others shall be brought within one (1) year from the date of the occurrence or from the date when the cause of action was, or reasonably should have been, discovered by the party injured.
Fraudulent concealment can potentially allow the a client to recover punitive damages but the discovery rule applies by statute, so the SOL will not start or begin to run until the client discovers the malpractice.
Gill v. Warren, 751 S.W.2d 33 (Ky App. 1988) continuous representation rule tolls the SOL or defers accrual of the cause of action while the attorney continues to represent the client and the representation relates to the same transaction or subject matter as the allegedly negligent acts.
OKLAHOMA
Ok. Stat. Ann. 12 § 95
The Oklahoma Statute of Limitations for legal malpractice is two (2) years but the SOL begins to run from the date the negligent act occurred or from the date the plaintiff should have known of the negligent act. The SOL period may be tolled, however, by concealment by the attorney of the negligent acts which have injured the client. One relying on fraudulent concealment to toll the SOL must not only show that he did not know facts constituting a cause of action, but that he exercised reasonable diligence to ascertain such facts.
FLORIDA
Fla Stat. § 95.11(4)(a)
The Florida Statute of Limitations for legal malpractice is two (2) years and begins to run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.
Florida is one of just a few states that that says the SOL does not begin to run until the legal proceedings underlying the malpractice claim have been finalized, even by appeal if necessary. See, Silverstrone v. Edell, 721 So.2d 1173 (Fla. Sup. Ct. 1998). This is unusual. Most states will not allow you to wait and give the attorney a chance to “fix” his or her malpractice error on appeal.
SOUTH CAROLINA
S.C. Code Ann. § 15-3-530(5)
The South Carolina Statute of Limitations for legal malpractice is three (3) years but the SOL begins to run from the date the facts and circumstances of an injury would put a person of common knowledge and experience on notice that some claim against the lawyer existed.
NORTH CAROLINA
N.C. Gen. Stat. § 1-15 (c)
The North Carolina Statute of Limitations for legal malpractice is three (3) years but the SOL begins to run from the last act of negligence occurs.
Why Hire an Out-of-State Lawyer?
Just because your state does not appear on the list above does not mean we cannot help you. We have handled legal malpractice cases in several other states including New York, California and Washington. We have even gotten a call from a prospective client in Alaska but the client had waited too long to call and her SOL had already expired. The list above is just the most common states that we work in. However, finding local representation for a legal malpractice case can be difficult due to the reluctance of lawyers to sue their peers. We have a strong track record of holding negligent attorneys accountable, even if it means taking on cases from across the country. Our firm is committed to helping clients navigate the complexities of legal malpractice, ensuring that negligent attorneys are held responsible for their actions.