In Pennsylvania, the legal malpractice negligence statute of limitations is two years. The legal malpractice breach of contract limitation is four years. Those limitations begin upon the “occurrence” of the complained-of attorney negligence (i.e., liability). Those limitations are tolled by the discovery rule and its corollary, the doctrine of fraudulent concealment.
When there is a factual dispute as to the statute of limitations’ application, that dispute is resolved by a jury. Otherwise, the statute of limitations is resolved by the court. The strict application of Pennsylvania’s occurrence rule being tempered by equitable tolling is fact-specific.
The damages available to a plaintiff and former client in legal malpractice negligence are identical to legal malpractice breach of contract if the malpractice arises from a civil action.
The above is an overview of the current state of legal malpractice law. Because there is a dearth of appellate—let alone Supreme Court—precedent with regard to the law of lawyering, this jurisprudence is evolving.
Many jurisdictions toll the legal malpractice statute of limitations when claimed malpracticing counsel represents the malpractice-damaged client (most commonly on appeal). This is known as the “continuous representation rule.” The continuous-representation rule in some jurisdictions is codified as part of the legal malpractice-specific statute of limitations. In other jurisdictions, the continuous-representation rule is gleaned from codifications of equitable tolling statutes.
In Pennsylvania, the General Assembly has not specifically distinguished legal malpractice from tort and contract statutes of limitations—the legal malpractice negligence and breach of contract limitations being judicially established. Likewise, Pennsylvania does not have an equitable tolling statute of limitations—the discovery rule and fraudulent concealment doctrine also being judicially established.
As there is not much in the way of legal malpractice-specific precedent in Pennsylvania and the General Assembly has not aided that jurisprudential analysis, the law of lawyering, even at its most basic fundamentals (i.e., statute of limitations, damages, necessity for legal malpractice expert, etc.), is a constant issue in legal malpractice litigation. As such, most attorney liability precedent garners stare decisis foundation from general negligence/contract principles with a dash of overbroad borrowing from inapposite legal malpractice opinions. Despite this dilemma (the lack of civil law governing our own profession), our courts seem loathe to borrow concepts from other more precedentially wealthy jurisdictions. Said differently, Pennsylvania is provincial.
It comes as no surprise that with a lack of clear direction and a seeming refusal to look beyond our borders to other courts’ precedents as persuasive authority, legal malpractice actions often result in overly harsh and unfair applications of basic concepts, overwhelmingly in favor of attorneys and against their former clients. Additionally, the claimed offending attorney’s actions and the claimed inactions of the malpracticed plaintiff may be adjudicated in the same venue in which counsel has practiced.
Excepting the most dramatic circumstances—clear violations like fraud, defalcation, reckless departures from the standard of care, catastrophic loss—most trial courts side on behalf of attorneys, interposing otherwise substantive and complex buzz words without analysis as merely a means to an end. They refer to “judgment calls,” “speculative damages,” “failure to prove the case within the case,” “settlement bars,” “no causation” and more. As the law of lawyering in Pennsylvania is uniquely a judicial creation (in the absence of legislative intent), it seems there is an overriding strong public policy to be, in fact, anti-public, rather than favoring pre-verdict dismissal. This is directly in contrast to the decisions of our federal courts (even when interpreting Pennsylvania law) and New Jersey’s courts.
This overriding Pennsylvania public policy of favoring pre-verdict dismissal in favor of claimed offending counsel is in stark contrast to other professional negligence actions (i.e., realtors, accountants and, moreso, doctors), where trial and appellate courts alike overwhelmingly favor jury determinations.
Thus, when comparing the law of lawyering to the law of medicine, for example, medical malpractice cases go to jury verdicts while legal malpractice cases get dismissed pre-verdict.
Pennsylvania courts’ pro-attorney bent seems prototypically at play in the continuous-representation rule. Said differently, nothing would make more sense than to encourage an attorney’s ongoing representation (provided that counsel gives full notice of his or her claimed and perhaps initially adjudicated malpractice to the client, and conflicts of interests are waived). By encouraging ongoing representation—as opposed to termination and countervailing lawsuits (malpractice fee versus delinquent attorney fees)—it would seem to make sense that the client is protected from the statute of limitations by the putative legal malpractice action being tolled throughout the continuance of the representation. As stated before, a lot of jurisdictions have even codified the continuing representation rule; it would make sense for our courts to adopt such a rule.
In Glenbrook Leasing v. Beausang, 839 A.2d 437 (Pa.Super. 2003), the plaintiff was a real estate partnership consisting of four physicians represented by defendant counsel to prepare an agreement of sale and deed in connection with Glenbrook’s proposed purchase of office space for medical offices. The agreement of sale contemplated that the seller would reserve essentially 35 parking spaces for the buyer. While this provision was contained within the agreement of sale, it was omitted from the deed. Of course, a dispute between the landlord and the tenant erupted over the parking spaces.
Upon notice of this underlying dispute, the plaintiff sought a second opinion from independent counsel in 1994. However, the original counsel represented the plaintiff in the litigation that then followed, resulting in a bench verdict in favor of the plaintiff that was ultimately settled after appeal.
In 2000, the plaintiff filed the instant legal malpractice action.
In granting the plaintiff the benefit of the discovery rule to toll the commencement of the statute of limitations from the 1988 parking space deed omission to 1994 (when the parking space dispute surfaced and was confirmed as problematic by independent counsel’s second opinion), the Superior Court held the legal malpractice claim nonetheless time-barred because it was not filed until six years thereafter. In adjudicating the plaintiff’s continuous-representation rule tolling argument (i.e., that the defendant counsel represented the plaintiff throughout the parking space litigation through to 2000), the Superior Court noted the plaintiff’s contention that “the vast majority of other jurisdictions have [accepted] the concept that the continuous representation of a client by an attorney tolls the running of a statute of limitations.”
Nonetheless, the Superior Court held that as an intermediate appellate court “it is not [its] place to announce such a sweeping change in the law. … This is a task entrusted to the Supreme Court of Pennsylvania or the General Assembly, and we will not usurp it.”
Thereafter, the Supreme Court granted allocatur but summarily affirmed. Given the Superior Court’s opinion additionally holding waiver and other procedural deficits, it would be permissible to argue the continuous-representation rule has, in fact, not been conclusively declined (notwithstanding the Superior Court’s opinion and the Supreme Court’s per curiam affirmance). The Superior Court dodged the issue and the Supreme Court summarily affirmed (perhaps per an imperfect record). The continuous-representation rule’s application may still be viable, but the dicta of Glenbrook will no doubt make a trial or subsequent appellate court think twice before adopting.
In reviewing the Glenbrook decision in the context of our above discussion, the outcome was unfortunately predictable. When given an opportunity to embrace sound public policy in the absence of contrary direct precedent or statute, the Superior Court avoided that opportunity for those very same reasons. This decision and the many legal malpractice decisions like it bring to mind an anecdote of a trial judge overruling an evidentiary objection being asked “Why?” to which the judge said, “Give me 24 hours and I will give you 24 reasons.”
Said differently, at every opportunity to refine or even confront the law governing the civil standard of conduct in our profession, the courts overwhelmingly adjudicate in favor of malpracticing counsel, avoiding extrajurisdictional persuasive authority, claiming waiver or other procedural defect, holding the inability of sound adoption of reasonable jurisprudence under the guise of the absence of legislative action or Supreme Court direct authority, applying inapposite, overbroad dicta to undermine the cause, and to otherwise preclude a jury’s adjudication on the merits.
In my legal malpractice experience, this anti-public policy is an unfortunate reality rendering simple disputes as requiring interim appellate adjudications prior to merits outcome. If this jurisprudence continues, standards of care will continue to go undefined, leading to more and more deviations incapable of remedy merely because of non-merits obstacles, ultimately causing a reduction in the amount of legal malpractice cases prosecuted.
While we all may personally benefit from having our claimed misconduct so immunized, this tide does not help us in advancing our clients’ causes by defining the standards of care and further derides our profession.
Matthew Weisberg is the managing partner of Weisberg Law. He focuses the firm’s practice on consumer and individual rights throughout Pennsylvania and New Jersey. Weisberg Law represents victims of legal malpractice and other professional negligence resulting in financial injury, fraud, civil rights violations, consumer abuse and foreclosure actions.