What Is Legal Malpractice?
When a lawyer is tasked with a particular case or transaction on behalf of a client, there is an expectation that the lawyer will be effective in pursuing the client’s objectives. Indeed, when a client hires an attorney, they are making us a promise that we will perform all services necessary to further our clients’ interests and represent them faithfully. Unfortunately, there are times when lawyers fail to live up to this promise and they are unable to recover the maximum benefits for their clients as a result. A lawyer who fails to do his job, who takes too long to do his job or who does not help his clients achieve the nearness of justice may be liable for legal malpractice. Legal malpractice, which is also known as attorney negligence, occurs when an attorney’s action or innaction cause damage to the client. In order to prove legal malpractice, a plaintiff must show that the defendant attorney was negligent in some way, and that this negligence was the proximate cause of plaintiff’s damages. An attorney’s negligence can be proven by demonstrating that they did not meet the standard of care that a fellow practioner in the community would do in a similar situation. In other words, the case or transaction is evaluated under a microscope to determine whether or not the attorney performed at the level that the average attorney would have in a similar situation . Some examples of legal malpractice situations may include, but are not limited to: As we previously discussed in sections 2-4, every cause of action has a statute of limitations. This means that the plaintiff must initiate the lawsuit within a certain period of time or they risk having their case hurled out of the Court. In general, pursuant to CPLR § 214 (6), a plaintiff has 6 years from the date of the malpractice to bring a legal malpractice lawsuit. However, there are some legal malpractice situations where a savings account may be added to the statute of limitations. For example, a plaintiff must initiate their lawsuit within 3 years of the date an attorney fails to provide a required service. Therefore, in the above example, if the attorney failed to file an appeal within the 30 day period, the client could initiated a legal malpractice action 3 years from the date the attorney failed to file the appeal. However, the time that would elapse between the original order and the date the client would be entitled to an appeal would be tolled, or saved, and excluded from the 3 year statute of limitations. Regardless of the complexity of the situation, the voter statute of limitations for legal malpractice claims should be well-known and understood by both litigants and legal professionals alike. It is not unusual for a legal malpractice claim to be bounced out of Court when this statute of limitations is either unknown or disregarded.
The Statute of Limitations
The statute of limitations is defined as "A statute limiting the period within which an action may be brought." Black’s Law Dictionary 1419 (6th ed. 1990) (emphasis added). The purpose of a statute of limitations is to "protect defendants from stale claims by giving the plaintiff a reasonable time in which to bring suit." Id. Therefore, if the time period for filing a legal malpractice claim pursuant to the statute of limitations has passed, you are out of luck; you may not proceed with your case.
The time limit for when a lawsuit must be commenced in State of New York for a legal malpractice action based on negligence pursuant to CPLR § 214(6), is three years from the date the negligent conduct took place. CPLR § 214(6); see also Green v. Belensky, 34 AD3d 525, 526 (2nd Dep’t 2006); Symansky v. Schwartz, 13 AD3d 669, 670 (2nd Dep’t 2004). Also, if you have two attorneys working on your case, you may not sue them both for legal malpractice, but the statute of limitations may apply differently to each attorney depending on when each attorney’s alleged malpractice occurred. See Arachi v. Aboulafia, 277 AD2d 194, 194-95 (2nd Dep’t 2000)(the statute of limitations against defendant attorneys was found to be tollied on the date of the alleged malpractice by the first firm of attorneys, but not by the second firm of attorneys). The statute of limitations may also apply differently if your legal malpractice claim is also based on fraud. Becker v. Friedman, 25 AD3d 738, 739 (2nd Dep’t 2006); Lamagna v. Smith, 26 AD3d 338, 338 (2nd Dep’t 2006); Schwenk v. Layton & Loisel, 284 AD2d 526, 528 (2nd Dep’t 2001).
Time Limit Says New York
In New York, the standard statute of limitations for filing a legal malpractice claim is three years. However, this time frame may be different in certain circumstances. If the claim is based on the underlying action which was ultimately lost, the issue is discovery or when the claim should have been discovered. A plaintiff must show both that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by an attorney, and that damages were actually suffered as a direct result of the law firm’s negligence.
For example, in Dean v. Kornreich & Piazza, P.C. 2008 NY Slip Op 33127(U), Decided September 25, 2008 the court held: "The Complaint against Defendants will survive if the accrual of the causes of action against Defendants occurred within the applicable legal malpractice statute of limitations. Generally, this statute of limitations is three years from the date the attorney-client relationship is terminated. Makhoul v. Haverford Agri. Ent., LLC, 57 AD3d 572, 568 [2nd Dept 2008]; see also Wilson v. Sate of New York, 5 NY3d 580, 585 [2005]. Here, since Plaintiff relied upon the advice of his attorneys to continue with the appeal [*2]and Plaintiff may have reasonably believed that he had no choice but to follow that advice Makhoul, 57 AD3d at 572], the cause of action accrued upon the appellate court’s decision, not the date the appellate court denied Plaintiff’s motion for reargument (Ex. 4). Significantly, the Complaint does not specify when Plaintiff retained Defendants, when the jury awarded Plaintiff compensatory damages, or when the appellate court reversed this award. The Complaint is silent as to the date the appellate court decided the case or any subsequent date when the Article 78 petition pursuant to CPLR § 7506 received a final determination (Dkt. 3).
Moreover, although Defendants filed their motion to dismiss the Complaint more than three years after the jury rendered its verdict, the relevant question is whether the Complaint was sufficient as against Defendants at the time it was filed. "[A] dismissal of a complaint as against a defendant who has not interposed a separate ‘favorable’ pleading because the complaint did not state a cause of action cannot avail the plaintiff nothing, yet defeat the statute of limitations." Tanges v. Heidelberg N. America, 60 NY2d 37, 43 [1983]. Applying this principle to the case before the Court, even if the appellate court’s decision denying Plaintiff’s motion for reargument on December 27, 2001 could be deemed the date the attorney-client relationship was terminated, the Complaint is sufficient against all the Defendants. This is because Defendants have failed to proffer evidence that would conclusively demonstrate their affirmative defense of the statute of limitations as a matter of law.
Exception to the Rule
There are a few exceptions to the otherwise hard and fast rule on timing. First, the statute of limitations in NY is 6 years (section 214(6)) runs from the date of the malpractice. In other words, the date when the lawyer committed the malpractice and you knew about it, which at a minimum is when the results came down, as in a lost trial (Friedman v. Lurie, LLC 2019 NY Slip Op 32062(U) (Supreme Court, New York County July 08, 2019 Taylor, J.)). The Friedman case is one of those that got into trouble because they waited too long. The NY law firm represented Friedman in a case between Friedman and AETNA. Friedman lost after trial and now the 3rd party law firm wants to sue the NY firm. The NY firm says he cannot because Friedman’s time is up.
Second, the discovery rule applies in legal malpractice cases. "In an action to recover damages for legal malpractice, the statute of limitations runs from the date when the client receives the decisive information that the attorney’s performance may be the cause of the client’s alleged woes and the harm has been actually discovered or may with reasonable diligence have been discovered." Nyere v. WPIX, Inc. 71 AD3d 614 79 NYS3d 552 (1st Dept., 2010) citing Nachmani et al. v. Edelson et al., 276 A.D.2d 356, 714 NYS2d 311 (1st Dept., 2000).
In Furey v. Coyle & Machiaverna, LLP 2019 NY Slip Op 3655 (1st Dept. 2019) we see the discovery rule being used. An attorney representing a client in an arbitration setting certified the facts on the application for an adjournment when the attorney knew that there was no justification for the adjournment. The Court determines that it is not until the final judgment is rendered that the law firm is aware that they had negligently certified the facts. As such, the statute of limitations for bringing the legal malpractice may be extended past the six year limit on timing.
Missed Deadline Means Trouble
If a legal malpractice claim is filed once the statute of limitations passed, it will be dismissed as a matter of law. The significance of timely action cannot be over stated. In New York, the statute of limitations for filing a legal malpractice case is three years from the date of the malpractice. If a malpractice case is not filed within that time frame, the lawsuit can and most probably will be dismissed. Then, a legal malpractice action cannot be filed against the attorneys who failed to act in the first case . Naturally, if two attorneys committed malpractice in the first case, the statute of limitations applies separately to each attorney and each legal malpractice case.
Therefore, for all ultimately unsuccessful cases, those whose statute of limitations has expired, quick action must be taken to be sure that all attorneys are named. This is certainly where the repeated mistakes of legal malpractice law firms come into play over and over again.
Here’s what to do if you suspect legal malpractice
If you think you have been a victim of legal malpractice, you should begin a process of documenting the case in order to evaluate your own damages. This process begins with the practice pointer that one must be able to recognize what the error was. Then, and only then is it time to contact and consult a legal malpractice attorney who can critique the basis for a legal ‘case’ and advise on how to proceed in a timely fashion, given the statute of limitations. That’s right, timing is everything. If you consult a legal malpractice attorney too late and let the time for filing a legal malpractice action run out, you will be barred. There is absolutely no equivalent of these statutes of limitations in any other conduct, so you cannot simply name the wrongdoer in order to name the bar attorney as well.
In New York, the statute of limitations for legal malpractice is 3 years. When you compare that to an injury action or medical malpractice, which is 3 years from the date of the injury, you can see a major difference; the statute of limitations begins to run for legal malpractice from the date that you were hurt by the malpractice. As a matter of fact, it is about 1.2 to 1.5 years after the date of the malpractice, when a mistake can be recognized and argued that an attorney knew or should have known that the mistake had been made.
For a while we followed the analogy to medical malpractice, which is 2 and 1/2 years for treatment, but the courts now differ in that they see doctors holding the keys to a diagnosis, medication, and prognosis, while attorneys are supposed to know the law and are more self-sufficient.
Lastly, the time periods can get even shorter if the attorney withdraws from representing a party or the party decides to terminate the attorney. The clock starts running as soon as you discover malpractice or when you should have reasonably discovered malpractice. If the attorney withdraws, the time may start when the attorney gives notice of withdrawal. If the relationship is terminated during the case, the clock may start sometime thereafter as well.
Clearly, the time to seek legal advice is quickly after the malpractice occurs.
Final Thoughts
This discussion serves to summarize the key points mentioned above, regarding the New York legal malpractice statute of limitations. This article has suggested that the statute of limitations provide a narrow and often specific set of hurdles to plaintiffs. The purpose of the statute of limitation is to prevent litigation long past the event, as the wounds of the past are supposedly healed, and the passage of time will not promise a fair trial of the facts . It may be that in some cases, legal malpractice can be brought almost contemporaneously to the underlying case, especially when the underlying case hinges on a set of facts that are both readily accessible and complex. If you find yourself in this situation, seeking legal expertise may be very valuable in the long run. Being aware of the existence of the statute of limitations at the outset of your legal malpractice claim will be invaluable in avoiding the pitfalls of the law.