One of the reasons attorneys are sued for legal malpractice is because of the attorney’s failure to meet a deadline, such as filing a lawsuit within the statute of limitations. But what about when the client wants to file a lawsuit against his own attorney – what are the statute of limitations to sue your attorney for malpractice?
Every state has its own laws regarding the time limits for filing a lawsuit. Section 95.11(4)(a) of the Florida Statutes spells out the statute of limitations for legal malpractice:
- 95.11 Actions…shall be commenced as follows:
○ (4) Within two years –
■ An action for professional malpractice, other than medical malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.
Unfortunately, this two year period is not always as straightforward as it may appear. The determining factor for the statute of limitations for legal malpractice actions is whether or not a case is actually in litigation. In the case of Silvestrone v. Edell, 721 So.2d 1173 (Fla. 1998), the Florida Supreme Court held that the two year statute of limitations begins to run when the final judgment became final, i.e. when there are no more appeals remaining or when the time to make an appeal has expired. The Silvestrone rule, then, necessarily applies to cases that are in litigation. If, however, the client’s dispute is settled prior to any complaint being filed at all, the statute of limitations necessarily must change, as Florida’s Fourth District Court of Appeal distinguished in Glucksman v. Persol North America, Inc., 813 So. 2d 122 (Fla. 4th DCA 2002). In this instance, a client who believes that his attorney has committed malpractice has two years from when the parties executed the settlement agreement to file a lawsuit.
At the beginning of 2014, the Fourth District Court of Appeal faced a situation where neither the rule from Silvestrone nor Glucksman seemed to fit. In Arrowood Indemnity Co. v. Controy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A. (Fla. 4th DCA Jan. 8, 2014) 2014 WL 51692, a complaint had been filed, but the case had not yet proceeded to trial. The parties eventually reached a settlement before the trial began, and agreed to a dismissal of the litigation. The plaintiff filed a legal malpractice claim against his attorney just over 2 years past the date the settlement agreement in the original dispute was executed. The attorney moved to dismiss on the grounds that the holding from Glucksman should control; in other words, the plaintiff had missed the two year deadline from when the parties executed the settlement agreement. The circuit court agreed with the attorney, and the plaintiff appealed.
The Florida Fourth District Court of Appeal reversed the Arrowood decision, holding that the rule from Silvestrone applied. The Court rationalized that the plaintiff could not have known that the settlement was final until the trial court formally dismissed the litigation and there was no appeal by either party of the court’s dismissal. As in Silvestrone, the statute of limitations does not begin until the case has become final, as long as a complaint has been filed, and regardless of whether the case ends up proceeding to a trial or not.
The following sums up the statute of limitations for the filing of legal malpractice claims in the state of Florida:
- Before a complaint has been filed? Two years from the execution date of any settlement agreement.
- After a complaint has been filed but before a trial? Two years from the date of final judgment.
- After a trial? Two years from the date of final judgment.
Think You Have a Malpractice Claim? Don’t Wait!
Legal malpractice claims can be complicated and may require a lengthy amount of investigation. There needs to be enough time remaining on the statute of limitations for your attorney to investigate your claim. Therefore, if you believe you have a claim for legal malpractice, it is best to contact a reputable malpractice attorney as soon as possible. The attorneys at the Law Offices of Craig R. Zobel are dedicated to helping clients affected by legal malpractice. Call (561) 277-1819 today for a free, confidential consultation.