One of the most preventable attorney malpractice claims is a statute of limitations claim. The initial steps at client intake can help avoid or minimize your risk of being sued. The firm needs at intake determine if the firm is bumping up against a statutes of limitation issue. As best as possible determine that you are not walking into a blown statute claim. It is important that the attorney gather and read any contracts (including insurance policies, employee handbooks, etc.) that might alter the statute of limitations. Make sure to document you system with the appropriate filing dates.
Should you determine not to represent the client, send a timely non-retention letter and, if necessary, advise of the appropriate statute of limitations deadlines. While doing these things will not guarantee that you will never be sued, it will increase the likelihood of a successful defense.
Most states have held that an underlying contract may alter the statute of limitations. Many attorneys neglect to read the contract until it is too late. Once the dates have past, generally there is little the attorney can do but to notify their malpractice carrier and the client. Lawyer professional liability insurance underwriters have little sympathy with firms for blown statute of limitation claims. Malpractice insurance carriers view these claims as very preventable claims.
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Lee Norcross, MBA, CPCU
Managing Director, CEO
(616) 940-1101 Ext. 7080