Chapter 24 - § 24.4 • DEFENSES TO LEGAL MALPRACTICE CLAIMS
| Jurisdiction | Colorado |
§ 24.4.1—Failure to File a Certificate of Review
A certificate of review is required when a claim of professional negligence is asserted against an attorney, and expert testimony is necessary to establish a prima facie case.86 C.R.S. § 13-20-602 provides:
In every action for damages or indemnity based upon the alleged professional negligence of . . . a licensed professional, the plaintiff's . . . attorney shall file with the court a certificate of review for each . . . licensed professional named as a party . . . within sixty days after the service of the complaint, counterclaim, or cross claim against such person unless the court determines that a longer period is necessary for good cause shown.87
"A certificate of review verifies that the plaintiff has consulted with an expert in the relevant area who has concluded that the plaintiff's claim does not lack substantial justification."88 A certificate of review also may be required for breach of a fiduciary duty claim arising from a professional relationship and a breach of contract claim based on a professional relationship created by contract to the extent these claims require expert testimony to establish the scope of a professional's duty.89
If the plaintiff cannot file a certificate of review within the 60-day timeframe, the plaintiff must request an extension of time from the court, for good cause, and should do so before the 60 days elapse.90 The trial court considers the following in determining whether good cause exists for an untimely filing: "(1) whether the neglect causing the late filing was excusable, (2) whether the moving party has alleged a meritorious claim or defense, and (3) whether permitting the late filing would be consistent with equitable considerations, including any prejudice to the nonmoving party."91
If the plaintiff fails to file a certificate of review when one is required, and does not request an extension of time, the defense may move for a court order requiring the filing of a certificate.92 The defense also may move to dismiss the claim for lack of a certificate of review,93 and where a certificate of review was required but not filed, the claim must be dismissed.94
§ 24.4.2—Duplicative Claims
Although a plaintiff in a legal malpractice action may attempt to bring causes of action in addition to one for professional negligence, additional claims may only be asserted if they are "separate and independent from any alleged negligence."95 "When a legal malpractice claim and a breach of fiduciary duty claim arise from the same material facts, the breach of fiduciary duty claim should be dismissed as duplicative."96 Likewise, where a breach of contract claim is based on the attorney-client relationship rather than a specific term in the contract, dismissal is appropriate as the breach of contract claim is subsumed in the malpractice claim.97
§ 24.4.3—In Pari Delicto/Unclean Hands
A defendant in a legal malpractice action may assert the defenses of in pari delicto and unclean hands if applicable. The doctrine of in pari delicto is based on the principle that "a participant in illegal, fraudulent, or inequitable conduct cannot recover from another participant in that conduct."98 The parties are deemed in pari delicto, and "the law will aid neither, but rather, will leave them where it finds them."99 The doctrine of unclean hands applies only to equitable remedies and prevents "one who has engaged in improper conduct regarding the subject matter of the cause of action" to pursue the claim at issue.100
§ 24.4.4—Statute of Limitations
A legal malpractice claim is subject to a two-year statute of limitations.101 The claim accrues when the client discovers, or through the use of reasonable diligence should have discovered, the attorney's negligent act and the client suffered damage as a result of the wrongful conduct.102 Damages may include incurring legal fees in order to ameliorate the impact of the attorney's negligence, which is sufficient injury for purposes of accrual of a legal malpractice claim.103 This is normally a question of fact, but if undisputed evidence shows the client knew or should have known of the wrongful conduct and the damage as of a certain date, the issue may be decided as a matter of law.104
"Uncertainty as to the precise extent of damage neither precludes the filing of a suit nor delays the accrual of a claim for purposes of the statute of limitations."105 Colorado courts have not adopted the continuous representation rule, which tolls the statute of limitations until the termination of the attorney's representation regarding the matter which gave rise to the negligence claim.106 Further, "a pending appeal does not postpone the finality of an otherwise final judgment, and an injury does not disappear because a more final adjudication of the result is sought."107
The remedial revival statute tolls the running of an otherwise applicable statute of limitations when an original, timely action has been terminated for lack of jurisdiction or improper venue and a new action is commenced within 90 days of the termination.108 However, the statute does not apply where the original action is dismissed on other grounds.109
§ 24.4.5—Judgmental Immunity
The defense of judgmental immunity allows a court to determine, as a matter of law, that an attorney was not negligent based on an error in professional judgment because the law was unsettled on the issue or the attorney made a strategic decision based on equally viable alternatives.110
§ 24.4.6—All Defenses Available in the Underlying Case
Where a plaintiff must prove causation in a legal...
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