Legal Malpractice FAQs.
1. What is the Statue of Limitations for a Legal Malpractice Claim in California?
The statute of limitations on claims against a lawyer in California is
either 1 or 4 years if the claim arises out of a civil matter. It is
different for criminal matters. The relevant statute is California Code of Civil Procedure section 340.6. That section is reproduced below [emphasis ours].
(a) An action against an attorney for a wrongful act or
omission, other than for actual fraud, arising in the performance of
professional services shall be commenced within one year after the
plaintiff discovers, or through the use of reasonable diligence should
have discovered, the facts constituting the wrongful act or omission,
or four years from the date of the wrongful act or omission, whichever
occurs first. If the plaintiff is required to establish his or her
factual innocence for an underlying criminal charge as an element of
his or her claim, the action shall be commenced within two years after
the plaintiff achieves postconviction exoneration in the form of a
final judicial disposition of the criminal case. Except for a claim for
which the plaintiff is required to establish his or her factual
innocence, in no event shall the time for commencement of legal action
exceed four years except that the period shall be tolled during the
time that any of the following exist:
(1) The plaintiff has not sustained actual injury.
attorney continues to represent the plaintiff regarding the specific
subject matter in which the alleged wrongful act or omission occurred.
attorney willfully conceals the facts constituting the wrongful act or
omission when such facts are known to the attorney, except that this
subdivision shall toll only the four-year limitation.
(4) The plaintiff is under a legal or physical disability which restricts the plaintiff's ability to commence legal action.
an action based upon an instrument in writing, the effective date of
which depends upon some act or event of the future, the period of
limitations provided for by this section shall commence to run upon the
occurrence of that act or event.
Application of the
statute of limitations can be tricky, and if you get it wrong the
mistake amounts to a death sentence for the case. The safest way to
proceed is to file a legal malpractice case within one year of the date
of the negligence or of the date the lawyer last represented you. Those
events usually provide the clearest and safeest cutoff dates. However,
even in those instances there can be issues that need to be properly
analyzed in order to determine the proper date. For example, just
because a lawyer has not executed a substitution of attorney form does
not mean that lawyer is still representing you for purposes of the
statute. Also, not everything a lawyer does for you will be considered
continuing representation. If the lawyer simply passes along documents
sent to him by the other side without commenting or advising you on the
contents that lawyer may not be engaged in continuous representation.
Because of the severity of the consequences of a missed statute, if you
have any questions you should contact an attorney immediately.
2. What damages am I entitled to recover if I sue my lawyer?
In a legal malpractice case, you are entitled to recover whatever
damages you should have received in the underlying case had the lawyer
not been negligent. This means that if you had a dispute over a
contract that would have paid you $50,000 in the absence of the lawyer's
mistake, you can recover $50,000 from the lawyer. In addition to
proving the amount of damages that should have been awarded in the
underlying case, a legal malpractice plaintiff also has to prove those
damages were collectible from the defendant in the underlying case.
Sometimes proving this is easy because the defendant has insurance
coverage or substantial assets, but you will not be able to collect $2
million from a lawyer for screwing up a case against an indigent
3. I would have been entitled to punitive
damages in my original case, if I sue my lawyer can I recover punitive
damages from him/her?
You can only recover whatever compensatory damages the lawyer's mistake
cost you, not punitive damages. Punitive damages are designed to
punish conduct that goes beyond mere negligence and deter the person
they are assessed against from engaging in that conduct in the future.
California Courts have determined that it would be inequitable to assess
punitive damages against a merely negligent lawyer when there is no
conduct beyond negligence to be deterred.
4. Does California require lawyers to carry insurance?
No, with certain exceptions. California only requires insurance
coverage for lawyers who are practicing as professional corporations or
as limited liability partnerships. Lawyers who practice in traditional
partnerships or as solo practitioners do not have to carry errors and
omissions (malpractice) insurance. If the lawyer does not have
insurance, California law requires he or she inform the client of the
lack of insurance in writing either at the time the lawyer is retained
or when the insurance coverage lapses. Most professional liability
policies are "claims made" policies. This means that if the coverage
lapses before you make a claim there will be no coverage for your claim
regardless of whether the negligence occurred while the policy was in
5. Does California require lawyers to have a written fee agreement?
Yes, in most cases. California Business & Professions code sections 6147 and 6148 set forth the requirements regarding
contingency and hourly fee agreements. Contingency agreements must be
in writing. Hourly or flat fee agreements must also be in writing if
the total fee is reasonably expected to exceed $1000. Both sections
also contain additional requirements regarding the contents of the
contracts. If an attorney fails to conform to those requirements, the
client has the option to void the contract. This issue comes into play
in both straight fee disputes and in legal malpractice cases. Voiding
the fee agreement can backfire, though, as the attorney will still be
entitled to recover the reasonable value of his or her services. The
reasonable value of the attorney's services can exceed the actual
contract value in some cases.
6. My lawyer won't give me my file, what can I do?
California, the file belongs to the client and the lawyer must give it
to you if you request it. The lawyer is allowed to copy the file if he
or she chooses to do so, but cannot withhold the file from the client
even if the client still owes the lawyer money. Call and write the
lawyer and tell them you are going to pick up the file within a
reasonable time period and you expect them to have it ready. If they
continue to stonewall you, contact the State Bar of California.
7. Am I entitled to recover damages related to emotional distress caused by my lawyer's actions?
No, at least in most cases. The general rule is a plaintiff may not recover money to compensate them for emotional distress caused by an attorney's error. There are certain exceptions, but they are relatively rare. Most legal malpractice plaintiffs will not be compensated for emotional injuries if those injuries were caused by the lawyer rather than the underlying defendant.