Time Is of the Essence: Leveraging Ohio’s Constricted Statute of Limitations for Legal Malpractice Claims to Dispose of Litigation Instituted Against Attorneys

Defense Digest, Vol. 22, No. 4, December 2016

By David J. Oberly, Esq.*

Time is of the essence. Truer words cannot be said when it comes to legal malpractice claims in Ohio, which has an extremely constricted one-year statute of limitations period for filing suit against attorneys for claims of allegedly deficient legal representation. Add to the mix what is commonly known as the “discovery rule”—which does not require actual discovery of the existence of a legal malpractice claim to trigger the limitations period, but only that a client had knowledge of sufficient facts to put him or her on notice of a need to pursue his or her possible remedies—and the statute of limitations becomes a potential minefield for plaintiffs and their attorneys, one that may completely preclude the possibility of recovery in legal malpractice actions if not navigated successfully. When utilized properly by defense practitioners, the statute of limitations can operate to completely shield attorneys from liability and defeat legal malpractice claims in their entirety in a variety of contexts.

Under Revised Code § 2305.11(A), a legal malpractice claim must be commenced within one year following the date upon which the cause of action accrued. Pursuant to R.C. § 2305.11(A), an action for legal malpractice accrues and the statute of limitations begins to run when there is a cognizable event whereby the client discovers or should have discovered his injury was related to his attorney’s act or non-act, and the client is put on notice of a need to pursue its possible remedies against the attorney, or when the attorney-client relationship for that particular transaction or undertaking terminates, whichever occurs later.

Generally, a cause of action exists from the time the wrongful act is committed. However, because application of the general rule in certain circumstances could lead to unconscionable results (barring the injured party’s right to recovery before he is even aware of its existence), Ohio has created an exception commonly known as the discovery rule. The discovery rule provides that a cause of action does not arise until the plaintiff knows, or by the exercise of reasonable diligence should know, that he or she has been injured by the conduct of the defendant. In other words, the discovery rule tolls the running of the statute of limitations until the time that a client discovers or should have discovered his or her alleged injury.

When applied to matters of legal malpractice, a cognizable event is “an event sufficient to alert a reasonable person that his attorney has committed an improper act in the course of legal representation.” Importantly, in the legal malpractice context, the discovery rule contemplates notice of an injury to the client’s legal interests, not the particular breach of the attorney’s duty of care that proximately caused the injury. In other words, an action accrues when the injury is discovered or should have been discovered, not when the negligent act occurs. The injured person does not have to be aware of the full extent of the injury before there is a cognizable event causing the statute of limitations to begin running. Instead, it is enough that some noteworthy event—the cognizable event—has occurred that does or should alert a reasonable person of the legal malpractice. The cognizable event puts the plaintiff on notice to investigate the facts and circumstances relevant to his or her claim in order to pursue remedies, and the plaintiff need not have discovered all of the relevant facts necessary to file a claim in order to trigger the statute of limitations. In this respect, constructive knowledge of facts, rather than actual knowledge of their legal significance, is enough to start the statute of limitations running under the discovery rule as to a legal malpractice claim. In analyzing the existence of a cognizable event, because statutes of limitations are remedial in nature and are to be given a liberal construction to permit cases to be decided upon their merits, courts will “indulg[e] every reasonable presumption and resolv[e] all doubts in favor of giving, rather than denying, [a] plaintiff the opportunity to litigate.” With that said, where a “noteworthy event” occurs that does or should alert a reasonable person that a questionable legal practice may have occurred, courts will find a cognizable event sufficient to commence the one-year statute of limitations period.

Revised Code § 2305.11(A)’s confined limitations period is a weapon that can be wielded by defense practitioners to defeat a wide variety of legal malpractice claims filed by disgruntled clients against their former attorneys. While determining the accrual date of the cause of action can be a thorny, elusive endeavor, this task should be a top priority for defense practitioners handling legal malpractice matters during the course of a lawsuit from start to finish. Right out of the gate, defense attorneys should thoroughly analyze the applicability of a statute of limitations defense during the preliminary evaluation of the claim. Importantly, the defense can operate to efficiently, effectively and definitively dispose of legal malpractice actions at the outset of litigation where the attorney is able to point to the existence of a cognizable event that occurred more than one year before the date that suit was filed, which can be utilized to extinguish claims with a successful Rule 12(b)(6) motion to dismiss. Furthermore, even if the preliminary investigation fails to reveal any obvious cognizable events at the outset of the litigation process, defense practitioners should focus their paper discovery requests and deposition inquiries in a manner that will allow them to obtain the necessary facts to demonstrate that the former client knew or should have known of the allegedly negligent performance of his or her attorney more than a year before suit, which can then serve as the basis for a successful motion for summary judgment based on a failure to comply with R.C. § 2305.11(A).

*Dave is an associate in our Cincinnati, Ohio office and can be reached at 513.372.6817 or djoberly@mdwcg.com.

¤

_{Defense Digest, Vol. 22, No. 4, December 2016. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}