What is a Statute of Repose?

If you are thinking of filing a claim for legal malpractice, you are probably aware that there is a statute of limitations on legal malpractice actions. Under Tennessee law, legal malpractice plaintiffs must file their malpractice claims within one year of the date that the cause of action accrues, or at the time when it is discovered by the plaintiff. What you may not know is that beginning on July 1 of this year, legal malpractice claims are also subject to a statute of repose, which is a different type of restriction on claims than a statute of limitations.

The Tennessee General Assembly has implemented a statute of repose for legal malpractice actions which sets the repose period at five years from the date of the act or omission which could constitute legal malpractice. A statute of repose is different from a statute of limitations in that it can begin and end without an injury occurring or, if an injury does occur, it may not be discovered until the statute of repose has already run. In Tennessee, since the statute of repose begins to run at the time the act or omission which could possibly amount to legal malpractice occurs, it is possible that a potential plaintiff may have no idea that the act or omission has occurred, or, in the alternative, may not be aware that they have suffered an injury because of it, until after the five year statute of repose has run.

In most cases, once the statute of repose has run, any claim against the attorney regarding that particular act or omission is barred. If, however, the defendant attorney has engaged in fraudulent concealment and the plaintiff can in fact prove that such fraudulent concealment occurred, the statute of repose will not bar the plaintiff’s claim. In a case where there has been fraudulent concealment, the plaintiff must bring their claim within a year of discovering that their cause of action exists.

Since potential legal malpractice plaintiffs must be able to prove fraudulent concealment in order to avoid being barred by the statute of repose, it is important that they understand how they could prove it. The statute of repose in Tennessee is so new that it has not yet been tested by a claim of fraudulent concealment. It is quite possible that Tennessee courts will choose to use the same test in legal and professional malpractice actions that they currently use in medical malpractice actions. If the Tennessee courts do choose to use the test, often referred to as the Shadrick test, because it comes from the case of Shadrick v. Coker, 963 S.W.2d 726, 736 (Tenn. 1998), then plaintiffs will have to prove four things in order for the court to find that there has been fraudulent concealment. Those four things are that the defendant either took action to conceal the wrongdoing or concealed it by remaining silent despite having a duty to notify the client, that the plaintiff could not have discovered the wrongdoing through the use of reasonable care or diligence, that the defendant was aware of the facts which would give rise to a malpractice action, and that concealment actually occurred by reason of material information being withheld from the client in some way.

If you think that you might be a victim of legal malpractice, it is important to speak to an attorney right away so that your claim is not barred by a statute of limitations or the new statute of repose. The experienced Memphis Legal Malpractice Attorneys at Bailey & Greer, PLLC are here to help you. To learn more, call (888) 470-9143 to schedule a time to discuss your case. At Bailey & Greer, PLLC, we are small enough to care, big enough to fight, and experienced enough to win.