Legal Malpractice Law Review : Professional Responsibility Case Summaries & Commentary : Bennett J. Wasserman : LegalMalpractice.com : Lawyer Malpractice & Legal Ethics

Edwards v. Thorpe, 876 F. Supp. 693 (E.D. Pa. 1995).

PA: Underlying FBI investigation

Student Contributor: Laura Binski

Facts: Mr. Edwards (the client) was taken hostage in a robbery attempt of the bank where he worked as an assistant manager. After the event, Mr. Edwards sought legal counsel from Mr. Thorpe (the lawyer). In March of 1989, the lawyer sent a letter to the client’s boss stating: “I am Causley Edwards’ attorney and I have been informed that the FBI considers him a suspect in a recent robbery attempt…” The client claims that the lawyer had no reason to believe the FBI has listed him as a suspect. As a result of the letter, the client was placed on suspension without pay from his job at the bank until the FBI investigation cleared the client’s name or he was prosecuted and acquitted. The client was not exonerated until five years later, in April of 1994. The client filed a suit against the lawyer in October of 1994 for legal malpractice, breach of contract, and defamation.

Issue: Should the client’s claims be subject to Pennsylvania’s two-year statute of limitations? Does the statute of limitations begin to run at the time the alleged breach of fiduciary duty occurs or, as the client claims, when he is harmed?

Ruling:  The client’s claim will be subject to the two-year statute of limitations. Thus, the claim is barred because the complaint was not filed until five years after the alleged breach of fiduciary duty – when the lawyer sent the letter to the bank. The client cannot claim that he did not discover the letter, or the suspension it caused until after the FBI exonerated his suspected involvement in the robbery attempt.

Lesson: The client tried to make the claim that he could not file his lawsuit against the lawyer until after the FBI exonerated him of any involvement on the basis that if he were found to be guilty, he would have suffered no damages as a result of the lawyer’s misconduct. This claim contradicts the client’s assertion that he was harmed as a result of the suspension from his job and damage to his reputation. This case demonstrates the importance of attention to statutes of limitations. If the client had filed his complaint within two-years from the time that the breach of fiduciary duty occurred, it likely would not have been dismissed.

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Kohler v. Hawkins, 15 Ill.App.3d 455, 304 N.E.2d 677(App. Ct. 1973)

IL. underlying tort action

Student contributor: Cheryl Neuman

Facts: Two men were killed a car accident. Their estates hired defendant attorney in an action against the driver of the car in which the two men were killed. The defendants filed demands for arbitration and the arbitration hearings were held and damages were awarded. The award was subsequently vacated because the demand for arbitration was not filed within two years of the death of the decedents as required by the Injuries Act (Ill.Rev.Stat. 1965, ch. 70, pars. 1 and 2.). After the denial of a petition for leave to appeal, the defendants told the administrators of the estates that there would not be any recovery. The administrators then filed a complaint against the defendants alleging that the defendants were negligent and carelessly filed the demand for arbitration after the two year statutory allowance, thereby causing the administrators and heirs of the decedents the lost value of the arbitrator’s award. The defendants contend, however, that the statute of limitations has run and the plaintiffs can no longer sue them for a legal malpractice action.

Issue: Whether the statute of limitations for legal malpractice commences at the time of the negligent act or when the client discovers or should discover the facts establishing the elements of his cause of action?

Ruling: The cause of action for legal malpractice does not accrue until the client discovers or should have discovered the facts establishing the elements of his cause of action. Therefore, the complaint for legal malpractice was timely filed in this case. The statute of limitations did not begin to run until the administrators of the estates were advised by the defendant that they wouldn’t be able to recover in the underlying suit. Complaints filed within 5 years from that date were considered proper and timely filed.

Lesson: It is unrealistic and unfair to bar a negligently injured party’s cause of action before he had an opportunity to discover that it exists. The court reasoned that a client may not realize the negligence of an attorney when it occurs and to require a professional to check the work of the attorney would be impractical and would destroy the confidential relationship between attorney and client.
 

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Brizak v. Needle,  239 N.J. Super. 415, 571 A.2d 975 (1990)

Student Contributor: Maninder (Meena) Saini

NJ Underlying Statute of Limitations and Duty to Investigate

Facts: Plaintiff-client commenced a malpractice lawsuit against defendant-attorney, alleging the defendant was negligent by failing to file a medical malpractice claim before the expiration of the statute of limitations (“SOL”). The defendant argued the SOL did not start until there was expert opinion recognizing that medical malpractice had occurred. The facts are as followed: In 1981, plaintiff sustained an arm injury and was treated by Dr. Shafi. Instead of conducting surgery, the doctor simply placed her arm in a hanging cast. On December 5, 1983, plaintiff retained defendant to pursue an action against Dr. Shafi because she was still suffering from the affects of her arm injury. In May 1984, the defendant requested a copy of the hospital records. Next, in March 1985, the defendant obtained an opinion from a radiologist who advised defendant that no malpractice transpired. In June 1987, defendant obtained another medical expert opinion that held malpractice had occurred.

Issue: When does the “discovery” rule apply in any given case?

Ruling: The “discovery rule” tolls the statute of limitations when one “is either unaware that he has sustained an injury, or although aware that an injury has occurred, he does not know that it is, or may be, attributable to the fault of another.”  When one knows or has reason to know of the injury, the SOL starts to run.

Issue: What is the scope of a lawyer's duty  to investigate the basis of a client’s claim?

Ruling: An attorney must undertake a reasonably diligent investigation to determine if there is a  basis for commencing an action and when the statute of limitation starts to run.
The appellate court stated the “[d]efendant’s clearly erroneous advice to plaintiff that she need not be concerned about the time limitations until she found a physician to support her claim was itself a sufficient basis for linking his negligence to her failure to commence a timely action against the doctor.” The SOL started in December 1983 when the plaintiff had suspicion of the malpractice and retained a lawyer.  

Lesson: The defendant was not diligent in his investigation of the  medical malpractice nor of the ascertaining the date the cause of action accrued in order to determine the correct statute of limitations. . An attorney has a duty to take any steps reasonably necessary to properly handle the case which includes the duty to investigate and to file any action necessary for recovery within the applicable  time period.

Moreover, said the Court:

...[the] attorney who litigates a legal malpractice claim without the opinion testimony of a legal expert unnecessarily exposes his client to a serious risk...

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