Avoid flying into a mountain. One of the more preventable attorney malpractice claims is a statute of limitations claim. Initial steps at client intake can help avoid or minimize your risk of being sued. First determine if the firm is bumping up against statutes of limitation issues. 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. Accepting the case without reviewing this data is asking for trouble. We have seen more than one claim that the statute was about to expire at the time the attorney took the case.
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.
Should you determine not to represent the client, send a timely non-retention letter and, if necessary, cite 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. Attorney malpractice insurers have little sympathy when underwriting risks that have a blown statute of limitation claim.
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Lee Norcross, MBA, CPCU
Managing Director, CEO
(616) 940-1101 Ext. 7080