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.
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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.
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Pennsylvania: A Case Study
In Pennsylvania a tort claim has a two year statute of limitation and a breach of contract claim has a four year statute of limitation] Are legal malpractice claims tort causes of action based upon the attorney's failure to provide services consistent with the profession at large, breach of contact causes of action where the attorney fails to follow a specific term of an attorney-client contract, or some combination of both? How one characterizes a legal malpractice action in Pennsylvania can have an impact on the statute of limitation for such a claim. In Pennsylvania, an artfully pied complaint, which includes claims for breach of contract that sound in negligence, permits a plaintiff to bring what is, in reality, a negligence claim under a longer four year breach of contract statute of limitation. (8)
In order to fully understand this issue and the extent of the problems associated therewith, this article traces the development Pennsylvania jurisprudence on this subject.
Pennsylvania courts have recognized that an aggrieved client has a choice of two distinct causes of action against his attorney and can sue his attorney in either negligence--on the theory that the attorney failed to exercise the appropriate standard of care--or in breach of contract--on the theory that the attorney failed to follow specific instructions of his client and breached a contract by doing so. This principal is recognized in cases such as Duke & Company v. Anderson (9) and Hoyer v. Frazee. (10) In Hoyer, an attorney was sued in both breach of contract and negligence for allegedly causing plaintiff to purchase a smaller piece of property than what plaintiff had bargained for. The court determined that if the breach of contract action sounds in negligence, by asserting that the attorney failed to exercise an appropriate standard of care, the claim of breach of contract is not asserting a true cause of action and should be dismissed]I In Storm v. Golden, the court also concluded that a breach of contract claim is, in reality, a claim for professional negligence based in tort and not a true contract claim when the allegations are that the attorney failed to exercise an appropriate standard of care. (12)
Pennsylvania jurisprudence then took a different approach in 1993. In Bailey v. Tucker, (13) the Pennsylvania Supreme Court, in the course of discussing claims for ineffective assistance of counsel in criminal proceedings and notice requirements for commencing of the statute of limitations, acknowledged that a claim against an attorney based upon breach of contract is based upon the terms of the existing contract. The Court added, however, "[o]f course an attorney who agrees for a fee to represent a client is by implication agreeing to provide that client with professional services consistent with those expected of the profession at large." (14) This statement has been relied upon by other Pennsylvania courts to reason that every contract for legal services contains, as an implied term in the contract, a promise by the attorney to render legal services in accordance with the profession at large.
For example, in Gorski v. Smith, a client sued his former attorney in both negligence and breach of contract. (15) Rather than relying on precedent established by Duke and Hoyer, which had determined that a plaintiff may only bring a legal malpractice action sounding in breach of contract if that plaintiff alleges that the attorney failed to follow a specific instruction or term of a contract, (16) the Gorski court chose to follow the statement in Bailey for the proposition that "when an attorney enters into a contract to provide legal services, there automatically arises a contractual duty on the part of the attorney to render those legal services in a manner that comports with the profession at large." (17) A similar analysis was undertaken in Fiorentino v. Rapoport, where the court noted that certain expert testimony, which showed that the lawyer failed to exercise ordinary skill and knowledge expected of a lawyer engaged to prepare a contract for the sale of a business, supported a claim for legal malpractice based in contract. (18)
The Pennsylvania legislature subsequently added another layer to this issue. On January 27, 2003, Rules 1042.1 and 1042.3 of the Pennsylvania Rules of Civil Procedure were adopted. These Rules set forth the standards required for asserting claims against a professional for malpractice and that a professional deviated from some professional standard. The Rules require that a Certificate of Merit be filed in the action by the plaintiff that the defendant professional did so. Specifically, in order to allege professional malpractice claims in Pennsylvania, a plaintiff is required to file a Certificate of Merit under Pa.R.C.P. 1042.3 which states that "an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm." (19) By filing a legal malpractice case and the requisite Certificate of Merit, a plaintiff is acknowledging that the action is, in fact, a professional negligence claim based upon the notion that a defendant deviated from some professional standard. These Rules were adopted after Bailey...
