The Application of the Statute of Limitations and Legal Malpractice Cases – A Nationwide Examination
The following is a nationwide examination of the Statute of Limitations as it applies to Legal Malpractice cases. “Legal-malpractice suits are grounded in the tort of negligence.” See McGrogan v. Till, 167 N.J. 414, 425, 771 A.2d 1187, 1193 (2001)(citing Grunwald, supra, 131 N.J. at 492, 621 A.2d 459; Lieberman v. Employers Ins. of Wausau, 84 N.J. 325, 342, 419 A.2d 417 (1980).) “At the most fundamental level, the legal-malpractice action provides a remedy for negligent professional performance.” See McGrogan v. Till, 167 N.J. 414, 425, 771 A.2d 1187, 1193 (2001)(citing 2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 1.1, at 3 (3d ed.1989).) “…[I]t is the injurious conduct that engenders the alleged cause of action and then serves as the analytical trigger for determining the pertinent limitations period; injuries resulting from that conduct are a means of informing that inquiry.” See McGrogan v. Till, 167 N.J. 414, 425, 771 A.2d 1187, 1193 (2001)(other citations omitted.) The following nationwide examination is a tool to aid professionals on issues related to legal malpractice. Please note that the following is a brief overview. Every case is different, and we should be consulted for further analysis on pending actions.
Upon review, if you have any further questions or concerns as to how this nationwide examination of Legal Malpractice cases and the application of the Statute of Limitations thereto may apply to your company, we, at Thomas Paschos & Associates, P.C. would be glad to speak with you. One of our attorneys specializing in this field can speak with you today about our services. Contact Thomas Paschos & Associates, P.C. for more information. We can be reached at 856-354-1900 or 267-205-2444. You can also contact Thomas Paschos, Esq. at TPaschos@pascholaw.com.
Alabama
For malpractice actions against legal service providers, the statute of limitations is 2 years. See Ala. Code § 6-5-574. The accrual of the cause of action is after the act or omission or failure giving rise to the claim; however, if the claim is not discovered within two years of that time, the action may be commenced within six months from the date of discovery or the date when the facts should have been discovered, whichever is earlier. The statute of repose is 4 years after the act unless the act occurred before August 1, 1987.
Alaska
“…[A] six-year statute of limitations applies to professional malpractice actions accruing before August 7, 1997, as long as the action claims economic loss.” See Sengupta v. Wickwire, 124 P.3d 748, 753 (Alaska 2005)(citing Preblich v. Zorea, 996 P.2d 730, 734 n.11 (Alaska 2000) (citing Breck v. Moore, 910 P.2d 599, 603 (Alaska 1996)); see also former AS 09.10.050 (ch. 26 §§ 3-4, SLA 1997).) “For actions accruing after August 7, 1997 and claiming economic loss, a three-year statute of limitations applies.” See Sengupta v. Wickwire, 124 P.3d 748, 753 (Alaska 2005)(citing Preblich, 996 P.2d at 734 n.11; AS 09.10.053.) “Malpractice actions claiming personal or reputational injury are governed by a two-year statute of limitations.” See Sengupta v. Wickwire, 124 P.3d 748, 753 (Alaska 2005)(citing Breck v. Moore, 910 P.2d 599, 603 (Alaska 1996); Lee Houston & Assocs., Ltd. v. Racine, 806 P.2d 848, 855 (Alaska 1991); AS 09.10.070.)
“…[T]he statute of limitations for attorney malpractice begins to run when the client discovers or reasonably should have discovered the existence of all the elements of his cause of action. Moreover, if the client discovers his attorney’s negligence before he suffers damages, the statute of limitations will not begin to run until the client suffers actual damages.
See Beesley v. Van Doren, 873 P.2d 1280, 1281 (Alaska 1994)(citing Wettanen, 749 P.2d at 364 (citing Greater Area, Inc. v. Bookman, 657 P.2d 828, 829 & n.3 (Alaska 1982)); see also Thomas v. Cleary, 768 P.2d 1090, 1094 (Alaska 1989) (“holding that because plaintiffs “have incurred no damages, no [professional malpractice] has occurred.””).)
Arizona
For actions for legal malpractice, the statute of limitations is 2 years. See Ariz. Rev. Stat. § 12-542. The accrual of the cause of action is when the client knows or should know of the attorney’s negligent conduct and sustains immediate or irrevocable harm as a result of the negligence (Commercial Union Ins. Co. v. Lewis & Roca, 902 P.2d 1354, 1356 (Ariz. Ct. App. 1995))
Arkansas
“The statute-of-limitations period for legal-malpractice actions is three years.” See Nichols v. Swindoll, 2023 Ark. 97, ¶ 6, 668 S.W.3d 493, 497(citing Ark. Code Ann. § 16-56-105(3) (Repl. 2005).) “Absent concealment, it begins to run upon the occurrence of the wrong.” See Nichols v. Swindoll, 2023 Ark. 97, ¶ 6, 668 S.W.3d 493, 497(citing Delanno, Inc. v. Peace, 366 Ark. 542, 545, 237 S.W.3d 81, 84 (2006) (citing Goldsby v. Fairley, 309 Ark. 380, 831 S.W.2d 142 (1992)).) “”Fraudulent concealment suspends the running of the statute of limitations, and the suspension remains in effect until the party having the cause of action discovers the fraud or should have discovered it by the exercise of due diligence.”” See Nichols v. Swindoll, 2023 Ark. 97, ¶ 6, 668 S.W.3d 493, 497(citing Shelton v. Fiser, 340 Ark. 89, 96, 8 S.W.3d 557, 561 (2000).)
California
An action for damages for attorney’s wrongful act or omission, other than actual fraud, arising from performance of professional services has a statute of limitations of 1 year. See Cal. Code Civ. Proc. § 340.6(a), (b). The accrual of the cause of action is generally the date when plaintiff discovers or should have discovered facts constituting wrongful act or omission. Alternatively, the limitations period expires 4 years from the date of the wrongful act or omission, if sooner than 1 year after discovery. If the action is based on a written instrument which takes effect on a future act or event, the limitations period begins to run on the occurrence of that act or event. If the plaintiff is required to establish factual innocence of a criminal charge as an element of an attorney malpractice claim, the limitations period is 2 years after plaintiff’s postconviction exoneration by final judicial disposition of the underlying criminal case. Both the 1-year period and 4-year period are tolled under conditions specified in Cal. Code Civ. Proc. § 340.6(a) (e.g., if plaintiff has not yet suffered actual injury, if attorney continues to represent plaintiff regarding specific subject matter in which wrongful act or omission occurred, etc.) (see Gurkewitz v. Haberman, 137 Cal. App. 3d 328, 334–36 (1982).) If an action is based on an attorney’s representation of the plaintiff in a prior lawsuit, the limitations period begins to run on the entry of adverse judgment or final order of dismissal in prior action and is not tolled pending appeal of the underlying lawsuit (Laird v. Blacker, 2 Cal. 4th 606, 615–18 (1992).) The statute of repose is 4 years. See Cal. Code Civ. Proc. § 340.6(a). The accrual is the date of the wrongful act or omission (tolled for specified reasons).
Colorado
Actions for legal malpractice have a statute of limitations of 2 years. See C.R.S. § 13-80-102(1)(a). The accrual of the cause of action is when the plaintiff learns “facts that would put a reasonable person on notice of the general nature of damage and that the damage was caused by the wrongful conduct of an attorney” (Morrison v. Goff, 91 P.3d 1050, 1053 (Colo. 2004).)
Connecticut
An action for legal malpractice has a statute of limitations of 3 years. See Conn. Gen. Stat. § 52-577; Weiner v. Clinton, 106 Conn. App. 379, 386 (2008). The accrual of the cause of action is the date of the act or omission complained of.
Delaware
An Action for legal malpractice has a statute of limitations of 3 years. See Del. Code Ann. tit. 10, § 8106. The accrual of the cause of action is when the alleged malpractice occurred or, subject to the time of discovery exception, when the plaintiff has discovered facts constituting the basis of the cause of action or the existence of facts sufficient to put a person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to the discovery of such facts (Wilhelm v. Martson, 2013 Del. Super. LEXIS 526, at *13 (Nov. 20, 2013).)
District of Columbia
Actions for legal malpractice have a statute of limitations of 3 years. See D.C. Code § 12-301(8). The accrual of the cause of action is when the plaintiff knows or by the exercise of reasonable diligence should know of its injury, the injury’s cause-in-fact, and some evidence of wrongdoing (BDO Seidman, LLP v. Morgan, Lewis & Bockius LLP, 89 A.3d 492, 500 (D.C. 2014).)
Florida
Legal malpractice has a statute of limitations of 2 years. See Fla. Stat. § 95.11(4)(B). The accrual of the cause of action is the time the cause of action is discovered or should have been discovered with the exercise of due diligence (Fla. Stat. § 95.11(4)(a)).
Georgia
An action for legal malpractice has a tatute of limitations of 4 years. See O.C.G.A. § 9-3-25; Duke Galish, LLC v. Arnall Golden Gregory, LLP, 653 S.E.2d 791, 793 (Ga. App. 2007). The accrual of the cause of action is when the wrongful act is committed/nominal damages are incurred.
Hawaii
“…[T]he statute of limitations in a legal malpractice claim is governed by HRS § 657-1(1), the accrual of which is determined by application of the discovery rule.” See Blair v. Ing, 95 Haw. 247, 267, 21 P.3d 452, 472 (2001.) “Under the discovery rule, “a cause of action does not ‘accrue,’ and the limitations period therefore does not begin to run, until the plaintiff knew or should have known of the defendant’s negligence.”” See Blair v. Ing, 95 Haw. 247, 264, 21 P.3d 452, 469 (2001)(citing Hays v. City and County of Honolulu, 81 Haw. 391, 393, 917 P.2d 718, 720 (1996).) Pursuant to HRS § 657-1(1), “[t]he following actions shall be commenced within six years next after the cause of action accrued, and not after: (1) Actions for the recovery of any debt founded upon any contract, obligation, or liability, excepting such as are brought upon the judgment or decree of a court; excepting further that actions for the recovery of any debt founded upon any contract, obligation, or liability made pursuant to chapter 577A shall be governed by chapter 577A…” See Haw. Rev. Stat. Ann. § 657-1 (LexisNexis, Lexis Advance through Act 49 of the 2024 Legislative Session. Subject to changes by Revisor pursuant to HRS 23G-15.)
Idaho
“Idaho Code section 5-219(4) provides that a two year statute of limitations applies to actions to recover damages for professional malpractice.” See Molen v. Christian, 161 Idaho 577, 580, 388 P.3d 591, 594 (2017)(citing I.C. § 5-219(4).) “Although not stated in the statute[of limitations governing legal malpractice actions, Idaho Code § 5-219(4), the Supreme Court of Idaho] has interpreted the law to require “some damage” before the action accrues and the limitation period begins to run.” See Chicoine v. Bignall, 122 Idaho 482, 483, 835 P.2d 1293, 1294 (1992)(citing Bonz v. Sudweeks, 119 Idaho 539, 541, 808 P.2d 876, 878 (1991).) “…[A]n action for professional malpractice shall be deemed to have accrued for the purposes of I.C. § 5-219(4) only when there is objective proof that would support the existence of some actual damage.” See Chicoine v. Bignall, 122 Idaho 482, 487, 835 P.2d 1293, 1298 (1992).
Illinois
Attorney and legal malpractice has a statute of limitations of 2 years. See 735 ILCS 5/13-214.3. The accrual of the cause of action is the date the plaintiff knew or should have known of his or her claim (Steinmetz v. Wolgamot, 2013 IL App (1st) 121375 (1st Dist. 2013).)
Indiana
Actions for legal malpractice have a statute of limitations of 2 years. See Ind. Code Ann. § 34-11-2-4(a). The accrual of the cause of action is when the aggrieved party has suffered an injury to his or her property and damages, but it is not necessary that he or she knows the full extent of the damages (Godby v. Whitehead, 837 N.E.2d 146, 150 (Ind. Ct. App. 2005)).
Iowa
Actions of contract or tort for malpractice, error, or mistake against attorneys have a statute of limitations of 5 years. See Iowa Code § 614.1(9). The accrual of the cause of action is when the wrongful act is discovered or when, by the exercise of reasonable care, plaintiff should have discovered the wrongful act (Huerta-Orosco v. Cosgrove, 979 F. Supp. 2d 974 (N.D. Iowa 2013)).
Kansas
“…[A client’s] legal malpractice claim based on [an attorney’s] breach of a legal duty is governed by K.S.A. 60-513(a)(4), which provides for a 2-year statute of limitations.” See Garcia v. Ball, 303 Kan. 560, 574, 363 P.3d 399, 408 (2015)(citing Pancake House, Inc. v. Redmond, 239 Kan. 83, 86-88, 716 P.2d 575 (1986).) “…[A] cause of action accrues when the right to maintain a legal action arises…” See Garcia v. Ball, 303 Kan. 560, 574, 363 P.3d 399, 408 (2015)(citing Mashaney v. Bd. of Indigents’ Def. Servs., 302 Kan. 625, 631, 355 P.3d 667, 673 (2015).
Kentucky
Professional Malpractice has a statute of limitations of 1 year. See Ky. Rev. Stat. Ann. § 413.245. The accrual of the cause of action is the date the party discovers, or reasonably should have discovered, that a wrong has been committed (Conway v. Huff, 644 S.W.2d 333 (Ky. 1982)).
Louisiana
Legal malpractice has a statute of peremption of 1 year, but no later than 3 years. See La. Rev. Stat. Ann. § 9:5605 “(“one year from the date of the alleged act or omission, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, . . . in all events, [legal] malpractice actions must be filed at the latest within three years from the date of the alleged act, omission, or neglect”)”. The accrual of the cause of action is when either the (1) act or omission occurs; or the (2) act or omission is discovered.
Maine
“Maine imposes a six-year statute of limitations on actions for legal malpractice.” See Haskell v. Hastings, 2010 Me. Super. LEXIS 120, *9(citing 14 M.R.S. § 752.) “In 1986 the Legislature clarified that the limitations period “starts to run from the date of the act or omission giving rise to the injury, not from the discovery of the malpractice, negligence or breach of contract, except as provided in this section or as the statute of limitations may be suspended by other laws.”” See Haskell v. Hastings, 2010 Me. Super. LEXIS 120, *9-10(citing L.D. 2400, § 2 (112th Legis. 1986) (codified at 14 M.R.S. § 753-B).) “This amendment to the statute of limitations for legal malpractice was enacted as part of the same Bill that eliminated the discovery rule in actions for medical malpractice.” See Haskell v. Hastings, 2010 Me. Super. LEXIS 120.
Maryland
Actions for legal malpractice have a statute of limitations of 3 years. See Md. Code Ann., Cts. & Jud. Proc. § 5-101. The accrual of the cause of action is when the plaintiff knows, or in the exercise of ordinary diligence should know, of the nature and cause of injury, subject to the “continuation of events” doctrine, which allows a plaintiff who was in a continuing confidential or fiduciary relationship with the adverse party to rely on the good faith of the fiduciary during the continuation of the relationship, and holds a cause of action may not accrue until the plaintiff is placed on actual notice of facts that would cause an ordinary person to suspect an abuse of that relationship. (Woods v. Kerpelman, 2016 Md. App. LEXIS 947, at *13-14 (Md. App. Oct. 20, 2016)).
Massachusetts
Actions of contract or tort for malpractice, error, or mistake against attorneys have a statute of limitations of 3 years. See Mass. Gen. Laws ch. 260, § 4. The accrual of the cause of action is when “a plaintiff knows or reasonably should know that it has sustained appreciable harm as a result of a defendant’s negligence” (Mass. Elec. Co. v. Fletcher, Tilton & Whipple, P.C., 475 N.E.2d 390, 391 (Mass. 1985) (collecting cases)).
Michigan
An action for legal malpractice against an attorney-at-law or a law firm has a statute of limitations of 2 years. See MCL § 600.5805(8). The claim accrues at the time that attorney discontinues serving the plaintiff in a professional capacity as to matters out of which the claim for malpractice arose, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim (MCL § 600.5838(1)). The claim may also be brought within 6 months after plaintiff discovers or should have discovered the existence of the claim, if later than expiration of 2-year limitations period (see MCL § 600.5838(2)). The statute of repose is 6 years. See MCL § 600.5838b. The accrual is the date of the act or omission that is the basis for the claim.
Minnesota
An action for legal malpractice has a statute of limitations of 6 years. See Herrmann v. McMenomy & Severson, 590 N.W.2d 641, 643 (Minn. 1999); see Minn. Stat. § 541.05, subd. 1(5) (general limitations period for injury to person’s rights for which no other period is specified). The cause of action accrues when plaintiff first suffers some damage from alleged malpractice. Hermann, 590 N.W.2d at 641.
Mississippi
“A three-year statute of limitations applies to legal-malpractice claims.” See Archer v. Creel, 217 So. 3d 690, 692 (Miss. App. 2016)(citing Bradley v. Jordan, 182 So. 3d 439, 440 (¶9) (Miss. 2016) (citation omitted).) “The Mississippi Supreme Court has held that “the statute of limitations in a legal malpractice action properly begins to run on the date the client learns or through the exercise of reasonable diligence should learn of the negligence of his lawyer.”” See Archer v. Creel, 217 So. 3d 690, 692 (Miss. App. 2016)(citing Champluvier v. Beck, 909 So. 2d 1061, 1063 (¶11) (Miss. 2004) (quoting Greenline Equip. Co. v. Covington Cty. Bank, 873 So. 2d 950, 956 (¶17) (Miss. 2002)).) “This is known as the discovery rule.” See Archer v. Creel, 217 So. 3d 690, 692 (Miss. App. 2016)(citing Bennett, 52 So. 3d at 369 (¶15).) “”The discovery rule is applied when the facts indicate that it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.”” See Archer v. Creel, 217 So. 3d 690, 692 (Miss. App. 2016)(citing Id. (citation and internal quotations omitted).)
Missouri
Malpractice against attorneys has a statute of limitations of 5 years. See Mo. Rev. Stat. § 516.120; Wilson v. Lodwick, 96 S.W.3d 879, 882 (Mo. App. 2002). The accrual of the cause of action is not when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained. Mo. Rev. Stat. § 516.100. Damages are capable of ascertainment and “the statute of limitations begins to run when the evidence was such to place a reasonably prudent person on notice of a potentially actionable injury.” Powel v. Chaminade College Preparatory, Inc., 197 S.W.3d 576, 582 (Mo. 2006) (internal quotation omitted). The test to be applied is “when a reasonable person would have been put on notice that an injury and substantial damages may have occurred and would have undertaken to ascertain the extent of the damages.” State ex rel. Marianist Province of the United States v. Ross, 258 S.W.3d 809, 811 (Mo. 2008). A cause of action accrues when a party can first ascertain the fact of damage, even though he may not know the exact amount of damage. Business Men’s Assurance Co. of Am. v. Graham, 984 S.W.2d 501, 507 (Mo. 1999). Despite the plain language of Mo. Rev. Stat. § 516.100, note that there is a line of cases stating that the fact that further damage may occur does not delay accrual. See, e.g., D’Arcy & Assocs., Inc. v. K.P.M.G. Peat Marwick, L.L.P., 129 S.W.3d 25, 29 (Mo. App. 2004) (accrual requires only that some damage be sustained and be capable of being ascertained; that further damage may occur does not matter).
Montana
“…§ 27-2-206, MCA, sets forth two independent timing requirements for filing legal malpractice actions: a three-year statute of limitations and a ten-year statute of repose.” See Snyder v. Love, 2006 MT 317, ¶ 9, 335 Mont. 49, 51-52, 153 P.3d 571, 573. “With regard to the three-year statute of limitations…the “discovery rule” begins the statute of limitations upon the discovery of the negligent act, while the “accrual rule” provides that the statute of limitations begins when all the elements of a claim, including damages, have occurred.” See Snyder v. Love, 2006 MT 317, ¶ 9, 335 Mont. 49, 52, 153 P.3d 571, 573; see also Watkins Trust v. Lacosta, 2004 MT 144, 321 Mont. 432, 92 P.3d 620. “Thus, for legal malpractice actions, the three-year statute of limitations does not begin to run until both the “discovery rule” and the “accrual rule” have been satisfied–that is, until the negligence was, or should have been, discovered, and all elements of the legal malpractice claim, including damages, have occurred.” See Snyder v. Love, 2006 MT 317, ¶ 9, 335 Mont. 49, 52, 153 P.3d 571, 573(citing Watkins Trust, PP39-40.) “…[A] statute of limitations is tolled by a defendant’s fraudulent concealment of a plaintiff’s injury because it would be inequitable to allow a defendant to use a statute intended as a device of fairness to perpetrate a fraud” while “a statute of repose is typically an absolute time limit beyond which liability no longer exists and is not tolled for any reason because to do so would upset the economic balance struck by the legislative body.” See Snyder v. Love, 2006 MT 317, ¶ 10, 335 Mont. 49, 52, 153 P.3d 571, 573; see also Joyce v. Garnaas, 1999 MT 170, 295 Mont. 198, 983 P.2d 369; § 27-2-206, MCA.
Nebraska
“Nebraska has a 2-year statute of limitations for actions for professional negligence except that causes of action not discovered, and which could not have been reasonably discovered until after the limitations period has run, can be filed within 1 year of discovery, with an overall limitation of 10 years after the date of rendering or failing to render such professional service which provides the basis for the cause of action.” See Inman v. Neb. Methodist Hosp., 16 Neb. App. 809, 815, 754 N.W.2d 767, 772-73 (2008)(citing Anonymous v. Vanconcellos, 15 Neb. App. 363, 727 N.W.2d 708 (2007); see, also, Neb. Rev. Stat. §§ 25-222 (Reissue 1995) and 44-2804 and 44-2806 (Reissue 2004).) “For claims alleging professional malpractice, the period of limitations begins to run when the treatment relating to the allegedly wrongful act or omission is completed.” See Inman v. Neb. Methodist Hosp., 16 Neb. App. 809, 815, 754 N.W.2d 767, 773 (2008)(citing Anonymous v. Vanconcellos, supra.)
Nevada
Actions for legal malpractice have a statute of limitations of 4 years from damage, or 2 years from discovery, whichever is earlier. See Nev. Rev. Stat. Ann. § 11.207(1). The four-year limitation accrues when the plaintiff sustains damage; the two-year liimitation accrues when plaintiff discovers, or through the use of reasonable diligence should have discovered the material facts which constitute the cause of action (Nev. Rev. Stat. Ann. § 11.207(1)). This time limitation is tolled for any period during which the attorney conceals any act, error or omission upon which the action is founded and which is known or through the use of reasonable diligence should have been known to the attorney (Nev. Rev. Stat. Ann. § 11.207(2)).
New Hampshire
“An action for malpractice is governed by RSA 508:4 (1997), which establishes a three-year limitation period for all personal injury actions.” See Therrien v. Sullivan, 153 N.H. 211, 213, 891 A.2d 560, 562 (2006)(citing Furbush v. McKittrick, 149 N.H. 426, 430, 821 A.2d 1126 (2003).) “A cause of action arises, thereby triggering the running of the three-year statute, once all the elements necessary for such a claim are present.” See Therrien v. Sullivan, 153 N.H. 211, 213, 891 A.2d 560, 562 (2006)(citing Shaheen, Cappiello, Stein & Gordon v. Home Ins. Co., 143 N.H. 35, 40, 719 A.2d 562 (1998).) “A cause of action for legal malpractice in a civil proceeding accrues when an attorney breaches a professional duty, damages occur as a result, and the claimant knows or should know of the injury and its cause.” See Therrien v. Sullivan, 153 N.H. 211, 213-14, 891 A.2d 560, 562-63 (2006)(citing id; Conrad v. Hazen, 140 N.H. 249, 251-52, 665 A.2d 372 (1995).)
New Jersey
Professional negligence not involving healthcare providers has a statute of limitations of 6 years. See N.J. Stat. Ann. § 2A:14-1; see McGrogan v. Till, 167 N.J. 414 (2001) (legal malpractice is 6 years). The accrual of the cause of action is when a plaintiff is able to discover, through the exercise of reasonable diligence, the facts that form the basis for the claim (see The Palisades At Ft. Lee Condo. Ass’n, Inc. v. 100 Old Palisade, LLC, 230 N.J. 427 (2017).)
New Mexico
“The four-year limitation on filing a complaint alleging legal malpractice ”commences when (1) the client sustains actual injury and (2) the client discovers, or through reasonable diligence should discover, the facts essential to the cause of action.”” See Brown v. Behles, 2004-NMCA-028, 135 N.M. 180, 183, 86 P.3d 605, 608(citing Sharts, 118 N.M. at 724, 885 P.2d at 645 (footnote omitted); § 37-1-4.) “The statute does not begin to run until the client both sustains injury and discovers or should discover the facts underlying the cause of action.” See Brown v. Behles, 2004-NMCA-028, 135 N.M. 180, 183, 86 P.3d 605, 608(citing Sharts, 118 NM at 725, 885 P.2d at 646, n.2; see also Wiste v. Neff & Co., CPA, 1998 NMCA 165, P8, 126 N.M. 232, 967 P.2d 1172 (stating that “each prong must be met individually”).) “A party sustains actual injury when the alleged malpractice “results in the loss of a right, remedy, or interest, or in the imposition of a liability.”” See Brown v. Behles, 2004-NMCA-028, 135 N.M. 180, 183, 86 P.3d 605, 608(citing Sharts, 118 N.M. at 725, 885 P.2d at 646 (internal quotation marks and citation omitted).)
New York
Actions for malpractice, other than medical, dental, or podiatric malpractice have a statute of limitations of 3 years. See N.Y. C.P.L.R. 214(6). The accrual of the cause of action is when the act, omission, or failure forming the basis of the complaint occurs (McCoy v. Feinman, 99 N.Y.2d 295 (2002)).
North Carolina
Actions for legal malpractice have a statute of limitations of 3 years, but where the damage is not readily apparent and the injury is not discovered, the suit must be commenced within 1 year from date of discovery. See N.C. Gen. Stat. § 1-15(c). The accrual of the cause of action is the occurrence of the last act giving rise to the cause of action, but where the damage is not readily apparent and the injury is not discovered, then accrual beings on the date of discovery. The statute of Repose is 4 years.
North Dakota
“…[A]n action for legal malpractice is governed by the two year statute of limitations provided by N.D.C.C. § 28-01-18(3).” See Broten v. Carter, 2019 ND 268, ¶ 8, 935 N.W.2d 654, 657. “Under N.D.C.C. § 28-01-18(3), a client must commence a malpractice suit within two years after the claim for relief has accrued.” See Broten v. Carter, 2019 ND 268, ¶ 8, 935 N.W.2d 654, 657(citing Larson v. Norkot Mfg., Inc., 2001 ND 103, ¶ 9, 627 N.W.2d 386.) “”A cause of action for legal malpractice does not accrue, and the statute of limitations does not commence to run, until the client has incurred some damage.”” See Broten v. Carter, 2019 ND 268, ¶ 8, 935 N.W.2d 654, 657(citing Id. (quoting Wall v. Lewis, 366 N.W.2d 471, 473 (N.D. 1985)).) “The action accrues when there is a conjunction of damage and wrongful act.” See Broten v. Carter, 2019 ND 268, ¶ 8, 935 N.W.2d 654, 657(citing Jacobsen v. Haugen, 529 N.W.2d 882, 885 (N.D. 1995).)
Ohio
Actions for legal malpractice have a statute of limitations of 1 year. See O.R.C. 2305.11(A). The accrual of the cause of action is when there is a cognizable event whereby the client discovers or should have discovered that his or her injury is related to his or her attorney’s act or non-act and the client is put on notice of a need to pursue his or her possible remedies against the attorney or when the attorney-client relationship for that particular transaction or undertaking terminates, whichever occurs later (O.R.C. 2305.11(A)).
Oklahoma
Actions for legal malpractice have a statute of limitations of 2 years. See Okla. Stat. tit. 12, § 95A(3). The accrual of the cause of action is when the negligent act occurred or from the date the plaintiff should have known of the act complained of (Ranier v. Stuart & Freida, P.C., 887 P.2d 339, 340 (Okla. Ct. App. 1994)).
Oregon
“In an action for professional malpractice, the applicable statute of limitations is ORS 12.110(1), which provides that the action must be initiated within two years of a plaintiffs injury.” See Hoeck v. Schwabe, Williamson & Wyatt, 149 Ore. App. 607, 611, 945 P.2d 534, 537 (1997)(citing U.S. Nat’l Bank v. Davies, 274 Ore. 663, 665-66, 548 P.2d 966 (1976).) “The two-year period, however, is subject to the “discovery” rule for establishing when a claim accrues for statute of limitations purposes.” See Hoeck v. Schwabe, Williamson & Wyatt, 149 Ore. App. 607, 611-12, 945 P.2d 534, 537 (1997). “As the Supreme Court explained in Stevens v. Bispham, 316 Ore. 221, 851 P.2d 556 (1993), in a legal malpractice action the statute of limitations does not begin to run “until the client knows or, in the exercise of reasonable care, should know, ‘every fact which it would be necessary for the [client] to prove *** in order to support his right to judgment.’ Thus, the claim accrues and the statute of limitations begins to run when the client both suffers damage and knows or, in the exercise of reasonable care, should know that ‘the substantial damage actually suffered was caused by’ the lawyer’s acts or omissions.”” See Hoeck v. Schwabe, Williamson & Wyatt, 149 Ore. App. 607, 612, 945 P.2d 534, 537 (1997)(citing Id. at 227 (emphasis in original; citations omitted) (quoting US. Nat’l Bank, 274 Ore. at 666-67, 670).)
Pennsylvania
Actions of legal malpractice have a statute of limitations of 2 years (however, if a claim is brought as breach of contract then a four-year statute of limitations applies under 42 Pa.C.S. § 5525). See 42 Pa.C.S.A. § 5524. The statutory period commences upon the happening of the alleged breach of duty, however, equitable tolling is permitted under the discovery rule only when, despite the exercise of due diligence, the injured party is unable to know of the injury or its cause (O’Kelly v. Dawson, 2013 PA Super 25 (Pa. Super. 2013)).
Rhode Island
“The statute of limitations governing legal malpractice causes of action is set forth at § 9-1-14.3. Section 9-1-14.3, which codifies the “discovery rule” exception previously recognized by this Court in the context of medical malpractice, provides that: “an action for legal malpractice shall be commenced within three (3) years of the occurrence of the incident which gave rise to the action; provided, however, that:
” * * * “(2) In respect to those injuries due to acts of legal malpractice which could not in the exercise of reasonable diligence be discoverable at the time of the occurrence of the incident which gave rise to the action, suit shall be commenced within three (3) years of the time that the act or acts of legal malpractice should, in the exercise of reasonable diligence, have been discovered.”” See Canavan v. Lovett, Schefrin & Hartnett, 862 A.2d 778, 783 (R.I. 2004.)
“Under the discovery rule, “it is not necessary for the plaintiff to fully appreciate the potential liability, or even be convinced of an injury; the objective standard requires only that the plaintiff be aware of facts that would place a reasonable person on notice that a potential claim exists.”” See Canavan v. Lovett, Schefrin & Hartnett, 862 A.2d 778, 783-84 (R.I. 2004)(citing Riemers v. Omdahl, 2004 ND 188, 687 N.W.2d 445, 449 (N.D. 2004).) “In keeping with the remedial spirit of the rule, this Court draws “all reasonable inferences” in plaintiff’s favor to determine whether, in the exercise of reasonable diligence, plaintiff should have discovered the alleged act of malpractice.” See Canavan v. Lovett, Schefrin & Hartnett, 862 A.2d 778, 784 (R.I. 2004)(citing Richmond Square Capital Corp. v. Mittleman, 689 A.2d 1067, 1069 (R.I. 1997) (mem.).)
South Carolina
Actions for professional malpractice have a statute of limitations of 3 years. See S.C. Code Ann. § 15-3-530(5). The accrual of the cause of action is when the plaintiff knew or by the exercise of reasonable diligence should have known he or she had a cause of action (S.C. Code Ann. § 15-3-535).
South Dakota
“The statute of limitations for legal malpractice actions in South Dakota is found in SDCL 15-2-14.2, which provides with certain exceptions, that a malpractice action can be commenced “only within three years after the alleged malpractice, error, mistake or omission shall have occurred.”” See Williams v. Maulis, 2003 S.D. 138, ¶ 9, 672 N.W.2d 702, 705. “”The statute of limitations on a claim of attorney malpractice begins to run at the time of the alleged negligence and not from the time when the negligence is discovered or the consequential damages are imposed.”” See Williams v. Maulis, 2003 S.D. 138, ¶ 10, 672 N.W.2d 702, 705(citing Keegan, 519 N.W.2d at 612.) “The continuous representation doctrine can also toll the statute of limitations for legal malpractice.” See Williams v. Maulis, 2003 S.D. 138, ¶ 11, 672 N.W.2d 702, 705 (citing Greene, 1998 SD 16 at P10, 575 N.W.2d at 460.)
Tennessee
Actions for legal malpractice have a statute of limitations of 1 year. See Tenn. Code Ann. § 28-3-104(c)(1). The accrual of the cause of action is when the injury occurs, or, under the discovery rule, when the plaintiff knows or in the exercise of reasonable care and diligence should know that an injury has been sustained as a result of wrongful or tortious conduct by the defendant (John Kohl & Co. P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998)). The statute of repose is 5 years. See Tenn. Code Ann. § 28-3-104(c)(2). The accrual is the date on which the act or omission occurred, except where there is fraudulent concealment on the part of the defendant, in which case the suit may be commenced within a year of the discovery that a cause of action exists.
Texas
An action for legal malpractice has a statute of limitations of 2 years. See Tex. Civ. Prac. & Rem. Code § 16.003(a); see Willis v. Maverick, 760 S.W.2d 642, 644 (Tex. 1988) (two-year statute of limitation applies to legal malpractice actions). The claim ordinarily accrues at time of an attorney’s negligent act or omission (Cox v. Rosser, 579 S.W.2d 73, 76 (Tex. Civ. App.—Eastland 1979, writ ref’d n.r.e.) (action for negligent drafting of document accrued when document was drafted); Citizens State Bank of Dickinson v. Shapiro, 575 S.W.2d 375, 386 (Tex. Civ. App.—Tyler 1978, writ ref’d n.r.e.)); but accrual of claim is deferred until client discovers, or in exercise of reasonable diligence should have discovered, the nature of the injury (Burns v. Thomas, 786 S.W.2d 266, 267–68 (Tex. 1990)); for actions based on malpractice in the prosecution or defense of a claim that results in litigation, the limitations period is tolled until all appeals on the underlying claim are exhausted (Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 156–57 (Tex. 1991)).
Utah
Actions for legal malpractice have a statute of limitations of 4 years. See Utah Code Ann. § 78B-2-307(4). The accrual of the cause of action is when some actual harm or damage manifests itself (Moshier v. Fisher, 449 P.3d 145, 148 (Utah 2019)).
Vermont
“In order to sustain a legal malpractice claim, plaintiffs have the burden of proving that defendant was negligent and that this negligence was the proximate cause of harm to plaintiffs.” See Fritzeen v. Gravel, 2003 VT 54, ¶ 8, 175 Vt. 537, 538, 830 A.2d 49, 52(citing Powers v. Hayes, 172 Vt. 535, 536, 776 A.2d 374, 375 (2001) (mem.).) “Pursuant to 12 V.S.A. § 511, plaintiffs had six years in which to bring their malpractice claim once the cause of action had accrued.” See Fritzeen v. Gravel, 2003 VT 54, ¶ 8, 175 Vt. 537, 538-39, 830 A.2d 49, 52(citing 12 V.S.A. § 511; Fitzgerald v. Congleton, 155 Vt. 283, 293, 583 A.2d 595, 601 (1990) (holding that legal malpractice claims alleging economic loss are governed by statute of limitations in § 511).) “For purposes of the limitation period, accrual occurs at the time the injury is discovered.” See Fritzeen v. Gravel, 2003 VT 54, ¶ 8, 175 Vt. 537, 539, 830 A.2d 49, 52
(citing Howard Bank, N.A. v. Estate of Pope, 156 Vt. 537, 538, 593 A.2d 471, 472 (1991).) “The time limit begins to run at that point in time when the “plaintiff had information, or should have obtained information, sufficient to put a reasonable person on notice that a particular defendant may have been liable for the plaintiff’s injuries.”” See Fritzeen v. Gravel, 2003 VT 54, ¶ 8, 175 Vt. 537, 539, 830 A.2d 49, 52(citing Rodrigue v. VALCO Enters., Inc., 169 Vt. 539, 541, 726 A.2d 61, 63 (1999) (mem.); Peltz v. Shidler, 952 P.2d 793, 796 (Colo. Ct. App. 1997) (“The focus is on a plaintiff’s knowledge of facts that would put a reasonable person on notice of the general nature of damage and that the damage was caused by the wrongful conduct of an attorney.”).)
Virginia
Actions for legal malpractice have a statute of limitations of 3 years for an oral contract, and 5 years for a written contract. See Va. Code Ann. § 8.01-246. The accrual of the cause of action is upon the termination of the attorney’s employment (Va. Code Ann. § 8.01-230; see also Van Dam v. Gay, 699 S.E.2d 480, 481 (Va. 2010)).
Washington
Actions for damages for professional negligence by persons other than health care providers or employees of health care providers have a statute of limitations of 3 years. See Wash. Rev. Code Ann. § 4.16.080(2); 1000 Virginia Ltd. P’ship v. Vertecs, 158 Wn.2d 566, 577, 579, 146 P.3d 423 (2006) (applies to professional negligence not involving health care providers). The accrual of the cause of action is when the plaintiff discovers, or in the reasonable exercise of diligence should discover, existence of facts underlying elements of plaintiff’s cause of action, in absence of more specific statute providing otherwise (see 1000 Virginia Ltd. P’ship v. Vertecs, 158 Wn.2d 566, 575–76, 146 P.3d 423 (2006)).
West Virginia
“In general, “[a] cause of action for legal malpractice accrues when the malpractice occurs, or when the client knows, or by reasonable diligence should know, of the malpractice.”” See Hupp v. Monahan, 245 W. Va. 263, 269, 858 S.E.2d 888, 894 (2021)(citing Syl. pt. 5, VanSickle v. Kohout, 215 W. Va. 433, 599 S.E.2d 856 (2004)) (See also Hupp v. Monahan, 245 W. Va. 263, 268 n.7, 858 S.E.2d 888, 893 (2021)(citing W. Va. Code § 55-2-12 (eff. 1959)) (“”Every personal action for which no limitation is otherwise prescribed shall be brought: . . . (b) within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries[.]””); Harrison v. Casto, 165 W. Va. 787, 790, 271 S.E.2d 774, 776 (1980) (“recognizing that a legal malpractice action may sound in tort or in contract, and further observing that “[t]he limitation of time within which a tort action for personal injuries can be brought under W. Va. Code, 1931, 55-2-12, as amended, is two years.””).)
Wisconsin
“The applicability of the six-year statute of limitations under Wis. Stat. § 893.53 to legal malpractice actions is well established.” See Hicks v. Nunnery, 2002 WI App 87, 253 Wis. 2d 721, 737, 643 N.W.2d 809, 815-16(citing Acharya v. Carroll, 152 Wis. 2d 330, 335, 337, 448 N.W.2d 275 (Ct. App. 1989). “Since this court has refused to accept the “discovery rule” in legal as well as medical malpractice cases, Denzer v. Rouse, and Peterson v. Roloff (1973), 57 Wis. 2d 1, 203 N. W. 2d 699, the date of the injury becomes the important date.” See Boehm v. Wheeler, 65 Wis. 2d 668, 676-77, 223 N.W.2d 536, 540 (1974.)
Wyoming
“[Wyo. Code Ann. §] 1-3-107(a)(i) clearly provides that a legal malpractice cause of action must be commenced not more than two years after the discovery of the alleged act, error, or omission.” See Connell v. Barrett, 949 P.2d 871, 874 (Wyo. 1997.) “Because Wyoming is a “discovery” state, the running of the statute of limitations is not triggered until such time as the plaintiff knows or has reason to know that a cause of action exists.” See Connell v. Barrett, 949 P.2d 871, 874 (Wyo. 1997)(citing Bredthauer v. Christian, Spring, Seilbach and Associates, 824 P.2d 560, 562 (Wyo. 1992); Mills v. Garlow, 768 P.2d 554, 555 (Wyo. 1989).)
