No Repose for the Lawyers: Statute of Limitation in Attorney Malpractice Actions
| Publication year | 1981 |
| Pages | 1029 |
| Citation | Vol. 10 No. 5 Pg. 1029 |
1981, May, Pg. 1029. No Repose for the Lawyers: Statute of Limitation in Attorney Malpractice Actions
Statutes of limitation are enacted to compel litigants to pursue their claims while the evidence supporting and refuting their cause is still fresh, so as to give the opposing party a fair chance to defend and the truth a fair chance to emerge. They also assure that a state of repose will be attained by those concerned about past errors.
Attorneys have a special need for such a state of repose in that many of the errors they could make, if they made errors, would become apparent only after many years had passed. However, there is no certainty concerning the statute of limitation for attorney malpractice in Colorado and, thus, no state of repose for Colorado lawyers.
Most statutes of limitation specify only that the statute begins to run from the time the cause of action accrues(fn1) and the meaning of "accrues" is a subject for interpretation by the judiciary. The general rule is that the action accrues at the time of the wrongful act.
In the usual tort or contract breach situation, where the wrong and the visible injury occur simultaneously, the general rule makes sense. Defendants are protected from stale claims, the goals which such statutes are designed to implement are well served and litigants are punished only for lack of diligence. In professional malpractice actions, however, where a great deal of time may elapse between the wrong and an ascertainable injury, the general rule can work a great injustice to an innocent plaintiff. To remedy that injustice, the courts invented the discovery rule: the cause of action does not accrue until a plaintiff discovered or in the exercise of reasonable diligence should have discovered the negligence.(fn2)
Colorado has never squarely decided how its statutes of limitation will apply to attorney malpractice actions. At this time, even the fundamental question of which statute of limitation to apply is unresolved. There is no special statute of limitation for actions against attorneys. The period of limitation may be the three-year limitation for contract actions(fn3) or the six-year limitation for tort actions.(fn4) A contract may be implied between an attorney and client and malpractice can be a breach of that contract. On the other hand, legal malpractice can also be construed as a failure to exercise required skill, care and diligence and thus could fall within the torts field.
Colorado law has expressed no preference for either of these choices. Which statute applies is determined by "the nature of
On the whole, however, the direction in most states appears to be toward tort treatment of professional malpractice actions.(fn6) Assuming the six-year limitation applies in Colorado attorney suits, when does that time begin to run?
Colorado has long permitted exceptions to the general rule that a cause of action accrues for statute of limitation purposes at the time of the wrong. The Colorado Supreme Court has stated that where the injury is seepage damage caused by a poorly constructed ditch, the application of that rule is not a "practical, equitable or fair test."(fn7) The damages are not immediately perceived and their extent cannot be known, so the statute will run "from the date the lands were visibly affected and injured by the seepage."(fn8)
Essentially the same rule has consistently been applied in equitable trust actions. The cause accrues under the statute,(fn9) "at such time as the claimant attains, or reasonably could have attained, notice of the trustee's use of the trust property in a manner which is inconsistent with the claimant's interest."(fn10) The claimant cannot know he is harmed until he has that notice, and the special fiduciary relationship between trustee and beneficiary discourages the beneficiary from investigating or voicing suspicions about the trustee's actions.
Finally, actions based on fraud have a limitations period which...
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