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Don’t Delay and Lose Your Rights: the Statute of Limitations on Legal Malpractice

WHAT IS A STATUTE OF LIMITATIONS (And why should you care)?

A “statute of limitations” is a law (a “statute”) which establishes the amount of time a plaintiff has to file a lawsuit in a specific type of case. Different types of claims have different “limitation periods,” though many California statutes of limitations specify 1-3 years, measured from the date of the defendant’s wrongful conduct (or, in some cases, the date the plaintiff learned that [s]he had a claim).

If you fail to file your lawsuit before the date the statute of limitations requires, you may lose all right to file the claim at all. This is why it’s critical for plaintiffs to seek an evaluation of their rights by an experienced attorney as soon as possible. If you wait, you may lose your rights.

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Two different measurements apply to the statute of limitations on legal malpractice. Generally speaking, the plaintiff must “commence” an action against the defendant attorney by the earlier of:

1. One year after the plaintiff discovers the facts which constitute a wrongful act or omission by the defendant lawyer, or

2. Four years after the date when the lawyer’s wrongful act or omission occurred. 

Some exceptions do exist, but you should never rely on falling within an exception. Consult an experienced malpractice attorney immediately if you believe you have a malpractice claim against a lawyer. (Note: it’s probably wise to consult an attorney outside the law firm of the attorney that you believe committed the malpractice.)

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EXCEPTIONS TO THE GENERAL RULE: Extending the Statute of Limitations

When the malpractice arises from a written instrument which does not become effective until the occurrence of a future act or event, the statute of limitations on malpractice claims relating to the instrument may be extended (but this is not always true, and the length of the extension varies). Consult an attorney promptly if this situation may apply to you.

Where the malpractice action arises from criminal charges, and the plaintiff must prove his or her innocence in that underlying criminal action in order to prove the malpractice claim, the plaintiff has two years after the date of a post conviction exoneration to bring the legal malpractice claim. Again – consult an attorney immediately if you think you might have this kind of claim.

Where the malpractice action relates to nonlegal services provided by an attorney, different rules and statutes of limitation may (or may not) apply. Obtain a personalized evaluation of your case if you hired an attorney to provide both legal and non-legal services, and you believe you have a malpractice claim.


Disclaimer: Damages, like other elements of a legal malpractice claim, is a complicated topic, and articles like this can only touch on the basic issues. The details of a legal malpractice claim are individualized and complicated.  Your rights and experiences may vary.  Never use an article (or any online source) to evaluate your legal claims. Always speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. 

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