Estate planners vulnerable to dormant legal malpractice claims

There's a six-year statute of repose for legal malpractice - unless the alleged act or omission isn't discovered until the client dies. Estate planning lawyers want more protection, and they're hoping new legislation can provide it.

Virtually all attorneys understand statutes of limitations. From the time an injury or other bad act occurs, there is a specific, defined timeframe in which a party may bring suit.

In some types of cases, the limitations period does not begin to run until an injury is discovered. In others, such as personal injury cases, the discovery rule generally does not apply - people generally know they're physically injured at the time of, or shortly after, an accident.

Statutes of repose, on the other hand, bar an action once a specific period of time has passed, regardless of whether the potential plaintiff later discovers the act or omission giving rise to the claim. In Illinois, there is a statute of repose for attorney malpractice lawsuits. The problem is that not all attorneys are protected by it.

The current law, 735 ILCS 5/13-214.3, establishes a two-year limitations period and a six-year statute of repose for legal malpractice actions. The two year limitations period incorporates the discovery rule (735 ILCS 5/13-214.3(b)), but the six-year repose period (735 ILCS 5/13-214.3(c)) prevents former clients from "discovering" malpractice well after it was allegedly committed.

There is, however, a major exception to this rule. If the alleged malpractice is not discovered until the death of the client, the two-year limitations period begins to run then (735 ILCS 5/13-214.3(d)). The statute of repose does not apply. What's more, if a probate estate is opened, the two-year period can be extended.

Estate planning lawyers are hoping for legislation that reduces their vulnerability, and they have an idea what shape it might take -- find out more in the April Illinois Bar Journal.