Even if an attorney is still representing a client in the underlying legal action, a client must bring a legal malpractice claim within the one year statute of limitations if they know, or should reasonably know, facts putting the client on notice that the attorney committed some type of error or malpractice that damaged the client.
In Tennessee, a client has one year to bring a legal malpractice claim from the time the client discovers an injury. The statute of limitations begins to run when:
- The client suffers an actual injury that is a result of an attorney’s negligence or other wrongdoing; and
- The client knows, or should have known, of facts sufficient to put him on notice of the injury (the discovery rule).
Accordingly, a court may find that a client knew or should have known of facts sufficient to put a client on notice of an injury even if the attorney continues to represent the client in the underlying matter or on appeal. As such, if the attorney makes a mistake at the trial level, even if the attorney claims that the error will be fixed on appeal, the statute will begin to run not after the appeal is decided but instead, when the client became aware of the injury at the trial level.
For example, in Sommer v. Womick, 2005 Tenn. App. LEXIS 424 (Tenn. Ct. App. July 18, 2005), the plaintiffs hired an attorney to represent them in a medical malpractice action. One day prior to trial, the court held a hearing, at which plaintiffs were present, to determine the admissibility of the plaintiffs’ expert’s testimony. At the hearing, the court found that the expert did not satisfy the locality rule. The judge stated that plaintiffs’ counsel did not present expert testimony meeting the requirements of Rule 26 and did not “do sufficient work” to meet the rule’s requirements. The court denied the admissibility of the expert and then dismissed plaintiffs’ case as plaintiffs had no expert testimony to prove their claims. The attorney subsequently told the plaintiffs the dismissal was not his fault, that they would win on appeal, and that their expert would be allowed to testify.
After the Court of Appeals affirmed the district court’s ruling, the plaintiffs filed a legal malpractice action, only three months after the appellate court’s ruling but almost three years after the trial court’s dismissal of plaintiffs’ action. The trial judge granted the attorney’s motion for summary judgment after finding the plaintiffs’ malpractice action was barred by the one year statute of limitations. The trial judge found that the trial judge’s decision in the underlying lawsuit was sufficient to put the plaintiffs on notice that their attorney had mishandled the case. Even though the plaintiffs argued that they did not understand the trial judge’s comments in the underlying case to be critical of their attorney, the court found that a reasonable person would be put on notice that the expert was excluded and the case dismissed because the attorney did not produce an expert who complied with the requirements of Tennessee law, especially in light of the judge’s comment that the attorney failed to “do sufficient work.”
Likewise, in the case of Chrisman v. Baker, 2005 Tenn. App. LEXIS 433 (Tenn. Ct. App. July 22, 2005), the plaintiff hired an attorney to represent her in her capacity as a conservator and later on, an administrator of the estate. Following her attorney’s advice, the plaintiff transferred assets to herself for fees owed to her for her caretaking services. At a hearing regarding the matter, the probate judge advised the plaintiff that the procedure she followed to compensate herself was not legally proper, ordered her to return the assets, and removed her as administrator.
Plaintiff’s attorney told her following the hearing that although he had followed the wrong procedure, plaintiff’s claim for services would be honored after proof was heard on her claim. Five years later, the probate court denied plaintiff’s claim, and the plaintiff filed a legal malpractice action within one year of the probate court’s denial of her claim.
The legal malpractice action was then dismissed as time barred. While the plaintiff argued she did not become aware of the malpractice claim until the probate court denied her claim for services, the court held that plaintiff knew she had been injured five years earlier when the judge made her return the assets she conveyed to herself and removed her as administrator. The court stated that reliance on erroneous legal advice will not toll the statute of limitations because the discovery rule only pertained to matters of fact unknown to a plaintiff, not matters of law.
These cases serve to reiterate and warn clients that if a client suspects his attorney has committed some form of malpractice, it is imperative to consult another attorney regarding his potential legal malpractice claim immediately and not rely on his attorney’s advice that any mistake will be fixed on appeal or by a later proceeding. Otherwise, the legal malpractice claim may be barred by the statute of limitations.
If you would like more information on understanding your rights following legal malpractice, call Bailey & Greer at 901-680-9777 for a free case consultation.
Since graduating magna cum laude in 2005 from the University of Memphis School of Law, Thomas has helped make a difference in the lives of victims of serious personal injury, wrongful death, and professional negligence. Thomas has extensive trial experience in both state and federal court. Among other victories in the courtroom, Thomas obtained several impressive jury verdicts and settlements
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