I recently had an e-mail from a concerned personal injury victim about his case. The writer is not a client of mine, but he was hoping I could give him some advice about the statute of limitations on legal malpractice claims.

I told him that the time limit to bring a legal malpractice claim in NY  is “generally” 3 years from the date of the alleged malpractice by the attorney (ie the first date you feel the lawyer screwed up).

The reason I qualified this statement by saying “generally” is that there are a few, very limited exceptions to this 3 year time limit requirement (more on this below).

In this man’s situation, his case may be dismissed – and that could have been caused by legal malpractice by his own attorney. Through no fault of his own, this victim is looking at his case being dismissed before he even really gets started because the time limit to bring a NY legal malpractice case (3 years) has already expired.

The sad part is that he might not have any recourse because he was so caught up in his medical situation that he didn’t even know the applicable time limit for bringing a lawsuit against his lawyer. Now he has discovered that he may have to hurry up and file a legal malpractice case – if he can – before the 3-year window to bring a legal malpractice case closes.

He wanted to know if this was all the time his case had left – and if there were anything else he could do.

Statute of limitations in legal malpractice cases can be very tricky to determine and often are very fact-dependent.

My usual rule of thumb is to use 3 years from the date of the alleged malpractice.  Any date other than that can become very risky because you are relying on exceptions to the general rule.

With that said, there is an exception generally referred to as the “continuous treatment doctrine” that is occasionally applied in medical malpractice cases. It says the clock doesn’t start to tick on the time limit to file a malpractice claim until the last date the defendant doctor continued to provide active treatment to the patient.

The corollary to this exception in the legal malpractice world is the “continuous representation doctrine” and it would suggest that the clock doesn’t start to tick on the attorney’s malpractice until the last date the attorney represented you on the particular matter that you allege he screwed up.

As I said before, these are general exceptions and the courts can be very strict in applying these exceptions to the facts of any particular case.  Accordingly, competent malpractice lawyers prefer not to ever rely on these exceptions and try to bring the action within 3 years of the date of the alleged malpractice.  I refer to this as the KISS principle: Keep It Simple, Stupid!

Because determining the proper time limit is so important (and fatal to your case if you do it incorrectly!), I urge anyone with a this issue to consult with an experienced malpractice lawyer ASAP!

I hope this helps.

Thanks for reading,
Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866  Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com http://www.zifflaw.com

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