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Other Situations that Toll the Statute of Limitations on Malpractice

In addition to the situations we’ve discussed in previous posts, California law recognizes a few additional, special situations where the statute of limitations for filing a legal malpractice action is tolled. 

To briefly review before we look more closely at these situations:

— A Statute of Limitations is a law (a “statute”) which limits the amount of time a plaintiff has to file a lawsuit (or, in some cases, bring a complaint) against a defendant. In the case of legal malpractice actions, the statute of limitations governs the amount of time a plaintiff has to sue an attorney for his or her wrongful actions (provided those actions constitute malpractice).

“Tolling” means that the statute of limitations is suspended, or not yet running. When the statute of limitations is tolled, the plaintiff receives extra time to file his or her action against the attorney equal to the length of time the statute was tolled.

Additional circumstances where the statute of limitations on malpractice actions may be tolled include:

— The client’s physical, mental, or other legally recognized incapacity/disability. Where the plaintiff client suffers from a legally recognized disability that renders him or her incapable of taking legal action against the defendant attorney, the statute of limitations is often tolled for the duration of the client’s disability. However, clients should beware: not every “disability” tolls the statute of limitations. Consult an experienced attorney to see what rules apply to your situation.

— When the lawyer willfully conceals his or her malpractice. (Note: this only impacts the 4-year statute of limitations; the shorter 1-year statute of limitations, which runs from the client’s discovery of the wrongful conduct, is NOT shortened by this situation.) If an attorney willfully hides the evidence of his or her wrongful conduct, the 4-year statute of limitations (which runs from the date of the conduct) may be tolled until the client actually discovers the malpractice.

— Where a court has active jurisdiction over the attorney’s legal practice. If a lawyer dies or stops practicing law due to an inactive bar license, professional discipline (of any kind), a California court may assume jurisdiction over the lawyer’s legal practice. In this case, special rules apply to filing malpractice claims; consult a malpractice specialist if this situation applies to you.

— Bankruptcy Proceedings (By the lawyer or the client.) Bankruptcy proceedings may impact a number of legal and financial claims, including malpractice. When the lawyer files for bankruptcy, the statute of limitations for a current or former client to file a malpractice claim may be extended for 30 days beyond the end of the automatic bankruptcy stay on proceedings; where the client files the bankruptcy, the statute of limitations on the malpractice action may be tolled much longer. Consult a bankruptcy specialist if you or the attorney who represents/represented you has filed for bankruptcy (or plans to do so) and a malpractice issue also exists.


Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR AND ANY PERSON. Your rights and experiences may vary. Never use an online article (including this one) to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel. Legal claims against lawyers or other third parties are a complicated topic. If you believe you have a claim against an attorney who failed to provide you with competent representation, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your possible rights and claims.

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