Article, Four-Year Limitations Period Against Attorneys? Perhaps No Longer, 0421 UTBJ, Vol. 34 No. 2. 30

AuthorBy Jeremy Speckhals
PositionVol. 34 2 Pg. 30

Article, Four-Year Limitations Period Against Attorneys? Perhaps No Longer.

Vol. 34 No. 2 Pg. 30

Utah Bar Journal

April, 2021

March, 2021

By Jeremy Speckhals

During the summer of 2019, the Utah Supreme Court issued three rulings that all Utah attorneys should be aware of. These cases have the practical impact of extending the four-year statute of limitations applicable to malpractice actions against attorneys. This practical extension also has implications for attorneys’ malpractice insurance needs. Attorneys of any discipline should take note. Indeed, these cases may affect any litigator in Utah – regardless of what substantive area of law the litigator practices in.

The Utah Supreme Court first issued Thomas v. Hillyard, 2019 UT 29, 445 P.3d 521. There, a jury convicted a criminal defendant of two felonies. Id. ¶ 3. The client was then able to secure a new trial after hiring new counsel. Id. ¶ 1. “He then accepted a plea deal in which he achieved a better result than he had received at trial – replacing two felony convictions with three misdemeanor convictions.” Id. He later sued his trial counsel for malpractice. Id. ¶ 5.

Trial counsel moved for summary judgment, arguing the client’s claim was time-barred because he filed it more than four years after the jury returned its guilty verdict. Id. ¶ 2. The client countered that “the element of causation could not be proven until he received a more favorable result, which happened when he accepted the plea deal.” Id. The supreme court sided with the client, holding “that a malpractice claim does not accrue until the underlying direct action has concluded and there is no appeal of right available. Once there is no appeal of right available, the harm is sufficiently final.” Id. ¶ 20. In reaching this conclusion, the court rejected trial counsel’s arguments that a criminal malpractice plaintiff must (1) establish that he was actually innocent, or (2) show that he was entitled to post-conviction relief to prevail on his malpractice claim. See id. ¶ 14.

The court built on that holding in Paxman v. King, 2019 UT 37, 448 P.3d 1199. In Paxman, an optometrist pleaded guilty to charges under the Fraudulent Insurance Act and the False Claims Act on the advice of counsel. Id. ¶ 1. He was then placed on a “federal exclusion list, which prevented him from participating in federal health care programs and billing a number of insurance...

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