What Effect Does Firing a Lawyer Have on Malpractice Lawsuits?
As we discussed last week, the statute of limitations, which governs how long a client has to sue a lawyer for malpractice (aka, professional negligence) is “tolled” – or paused – in certain circumstances.
This week, we look on the effect a continuing attorney-client relationship has on that statute of limitations.
To refresh: all states have special laws which limit the time a plaintiff has to file certain types of lawsuits. These laws are known as statutes of limitation, because they “limit” when the action can be filed. Certain facts or circumstances “toll,” or pause, these statutes, meaning that the limitations period does not run until the situation which paused the statute changes or no longer exists.
AN ONGOING ATTORNEY-CLIENT RELATIONSHIP SOMETIMES–BUT NOT ALWAYS–TOLLS THE STATUTE OF LIMITATIONS.
The statute of limitations for filing a malpractice action is tolled (paused) as long as the attorney continues representing the plaintiff client on the specific subject or issue in which the attorney’s wrongful conduct (or omission) occurred.
This accomplishes at least three important legal goals:
1. The lawyer cannot avoid a lawsuit by continuing to represent the client until the limitations deadline has expired.
2. The client isn’t forced to choose between finding alternate counsel “midstream” – and thereby disrupting negotiations or litigation – and making the lawyer answer for his or her wrongful action.
3. The lawyer has a chance to minimize or correct his or her mistakes, thereby lessening the damages the client may suffer.
Note: the client is not obligated to continue allowing the attorney to represent him (or her) for the duration of the action. A client can always fire an attorney at any legally-permitted time, and file a malpractice action if appropriate.
The statute of limitations DOES NOT toll (pause) if the original matter is finished (or if the attorney is fired, or stops representing the client on that matter) – even if the attorney continues to represent the client on other matters.
It doesn’t matter whether the client knows about the attorney’s wrongful act or omission, or whether the malpractice is unknown to the client during the ongoing representation. As long as the attorney continues representing the client with regard to the matter in which the malpractice (or alleged malpractice) occurred, the statute of limitations does not run.
The client can even consult with another attorney about the possibility of changing representation–or about filing a malpractice action against the original lawyer. Even these actions do not start the statute of limitations, as long as the original matter (in which the malpractice occurred) remains ongoing, with the attorney who (allegedly) committed malpractice acting as counsel for the plaintiff client.
However, the attorney-client relationship between the plaintiff client and the attorney who committed the wrongful act to which the malpractice claim relates IS terminated if the client retains replacement counsel in the relevant matter.
The lesson: consult an experienced malpractice attorney immediately if you’re thinking about firing your lawyer for what you believe is wrongful or negligent conduct.
DO NOT just hire a new lawyer, complete the lawsuit (or negotiation) and sue your original lawyer later on. You may find your claim barred by the statute of limitations.
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Warning: NEVER use this, or any other article or source of general information as a substitute for an in-person consultation about your legal rights. Always consult an experienced lawyer about your legal claims–whatever the cause. Never delay in obtaining a personalized evaluation of your legal rights.
