Texas Legal Malpractice Post – Special Tolling Rules
The statute of limitations for suing a lawyer in Texas is two years. Wait too long and you lose your right to sue. But when does the clock begin to run?
In general, a legal malpractice claim arises when the client suffers a legal injury. That means when the lawyer handles a case inappropriately and is negligent. That could occur when the client receives and acts upon bad advice from the lawyer or when the lawyer misses a critical deadline.
Sometimes it is easy to determine when the malpractice occurred and other times it subject to interpretation. Not every legal malpractice claim is as simple as a missed deadline.
In many cases, the client doesn’t even know that the lawyer has committed malpractice. The courts in Texas have therefore extended the time period to sue in certain cases. These extensions of the time to sue are known as “tolling doctrines.” Texas recognizes three special tolling rules.
The first tolling doctrine is called the discovery rule. Most states recognize some form of the discovery rule. This rule extends the time period in which to file a lawsuit until the client knew or reasonably should have known he was the victim of malpractice.
When should the client have realized something was wrong? These disputes are very fact specific. Because of the special relationship of trust between lawyers and their clients, courts tend to be more forgiving of clients who wait more than two years before suing their lawyer.
In the words of the Texas Supreme Court,
“A fiduciary relationship exists between attorney and client. As a fiduciary, an attorney is obligated to render a full and fair disclosure of facts material to the client’s representation. The client must feel free to rely on his attorney’s advice. Facts which might ordinarily require investigation likely may not excite suspicion where a fiduciary relationship is involved.”
Closely related to the discovery rule is the doctrine of concealment. If a lawyer hides her mistake from the client, the statute of limitations is tolled during that time. Let’s say a lawyer misses the deadline to file a personal injury lawsuit for her client. Normally the two year statute of limitations would begin to accrue the day that deadline was missed.
If the lawyer repeatedly lies to the client and says the case is still pending when it’s not, the two- year time period is tolled. It’s not tolled forever, however. Like the discovery rule, it is tolled until the client discovers the fraud or reasonably should have discovered the fraud.
Let’s look at an example. You hire a lawyer to file a personal injury lawsuit stemming from a fall at a store. Nothing happens for two years. You call the lawyer who never calls you back. You wait four more years and the lawyer still doesn’t call you back. Meanwhile you never receive any paperwork from the court or the lawyer.
Is it reasonable to wait 6 years after not hearing from your lawyer? Probably not.
Now lets say that your lawyer sends you regular updates and lies to you about your case. Lies for the same 6 years by telling you it is still pending when she knows she missed the deadline to file. Is it reasonable to rely on your lawyer? The lies mean concealment and perhaps 6 years is reasonable under these circumstances.
Our advice? At the first sense that something is wrong demand answers from your lawyer. If you don’t like the answers or the problem isn’t resolved immediately, seek help from a legal malpractice lawyer.
A third tolling doctrine is somewhat unique to Texas. Called the Hughes Rule, this doctrine stops the clock in litigation matters until all appeals are exhausted or the litigation is concluded.
Simply because a deadline is missed and your case is tossed out doesn’t mean your lawyer can’t appeal and reinstate the case or fix his error. The goal of the Hughes doctrine is to avoid legal malpractice claims while the underlying case is still pending.
The Hughes Rule does not apply in every case. Once again, these determinations can be very fact specific.
Texas courts are struggling with the parameters of the Hughes rule. Don’t wait before consulting with a malpractice lawyer. It is always better to be safe instead of sorry.
Texas Legal Malpractice Claim? Don’t Wait
Our advice to all potential legal malpractice clients is to seek counsel as soon as possible. While it is very possible to bring a Texas legal malpractice claim after the two year statute of limitations has expired, the tolling rules that can extend the time period to sue are very complex.
If you or your business have been the victim of legal malpractice, give us a call. If we can’t help you, we probably know someone who can.
In the last 10 years we have handled cases in over 30 states (including Texas). For more information, visit our Legal Malpractice information page “Can I Sue my Lawyer”. It is chock full of information including examples of what constitutes malpractice. Ready to see if you have a case? Contact us online by email [hidden email] or by phone 877.858.8018. All inquiries are protected by the attorney client privilege and kept strictly confidential.
Laws change frequently. As I write this post, the Texas Supreme Court is considering two cases that impact on the legal malpractice statute of limitations. This post – and all the information on this site – is offered for general information only. It is not a substitute for a consultation with a lawyer. Neither we nor any other law firm can effectively provide legal advice through a blog. If you have questions, pick up the phone and call us!
Our practice is generally limited to cases with a loss of $5 million or more. We do consider smaller cases, however. If you believe your losses are significant call us. Many people contact us because their lawyer lost at trial or a hearing. Losing is not malpractice. Simply because a different lawyer might have done a better job doesn’t necessarily mean malpractice.
We handle cases nationwide. In states where we are not licensed, we typically handle cases by seeking admission for the specific case and affiliating with local counsel. The author of this post, Brian Mahany, is admitted to the federal court bar in Texas.