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Tolling the Statute of Limitations on Legal Malpractice Claims

As we discussed last week, the “statute of limitations” is a law that provides a limitation period for the commencement of malpractice claims. Claims must be filed within the period stated in the law (or fall within an exception) or the plaintiff cannot recover. For this reason, it’s critical that plaintiffs must not delay in pursuing malpractice claims against attorneys. Delay may result in loss of rights and claims.

Under some specialized circumstances, the statute of limitations may be suspended (the legal term for this is “tolling”) for a period of time. However, “tolling” is the exception, not the rule, and plaintiffs should never delay in pursuing rights or claims.

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The time for commencing legal malpractice actions may be suspended (“tolled”) if one or more of the following circumstances exist:

1.  While the defendant attorney continues to represent the client on the specific case or subject matter where the alleged malpractice/professional negligence occurred. (Note: the lawyer’s continuing representation of the client after resolution of the specific matter in question will not continue to toll the statute, so clients should seek guidance immediately after an act of suspected professional negligence occurs.)

2. Before the client sustains any actual injury resulting from the lawyer’s allegedly wrongful conduct. Injury is a mandatory element of legal malpractice, and since the plaintiff cannot file a malpractice action against a lawyer before (s)he can prove all required elements, it makes sense to delay the statute of limitations until it’s clear the client will (or will not) suffer damages. However, be aware: this doesn’t mean the statute will toll forever. Seek a professional opinion about the status of any claims immediately after learning of facts which might give rise to a malpractice claim.

3. If the plaintiff has a legal or physical disability that prevents the plaintiff from commencing a legal action for malpractice. Note: Not all disabilities toll the statute. If you believe you have a malpractice claim, consult a professional malpractice litigator without delay to learn whether your disability qualifies.    

4. If the defendant lawyer willfully conceals the facts which would constitute professional negligence, so the client is unable to discover the potential claim. (Note: this only tolls the longer, four-year limitations period, not the shorter ones.)

If tolled by one of these situations, the statute will start to run again when the situation ceases to exist or is resolved.

WARNING: Do not rely on one of these conditions to toll the statute of limitations, and do not evaluate your claim (or the applicable statute of limitations) on your own. If you believe you have a malpractice claim, consult a professional malpractice litigator without delay.


Although at least one California case has held that the standard statute of limitations on legal malpractice claims did not apply to the claims of a non-client (who claimed defamation arising out of opposing counsel’s representation of the opposing party in a case), later cases have held that the one-year statute of limitations applicable to personal injury actions did apply to non-client claims against opposing counsel.

The answer is: don’t rely on receiving an exception to, or tolling of, the statute of limitations, whether or not your claims relate to the actions of your own lawyer or someone else’s. If you think you have a claim for legal malpractice/professional negligence, consult an experienced litigation attorney without delay.


Disclaimer: Statutes of limitations are a complicated topic, and articles like this touch only on the basic issues. The details of a legal malpractice claim, and the applicable statutes of limitations are individualized and complicated.  THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE. 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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