Legal Malpractice Defenses
When filing a legal malpractice claim against an attorney,be prepared for the attorney (and insurer) to fight back. Under Louisiana law, you must file suit within three years of the lawyer’s alleged act of malpractice, and within one year of actual or constructive knowledge of that malpractice.
One of the most common defenses is the argument that the malpractice claim has been filed too late.
Prescription or Peremption?
PRESCRIPTION
An examination of common legal malpractice defenses must start with prescription. Prescription has been the most effective defense by lawyers to malpractice actions. Youmay be familiar with the phrase “statutes of limitation.” That concept is called prescription in Louisiana. It must be affirmatively pled and a failure to plead this defense may result in your former attorney waiving this right. There are three types of prescription but, generally, liberative prescription will apply in a legal malpractice case.
Liberative prescription is a mode of barring actions as a result of inaction for a period of time. So, when an action is barred by prescription, the cause of action is not extinguished, but it can no longer be enforced. It is also important to understand that the clock on prescription does not begin until you have actual knowledge of the fact upon which you are basing your malpractice claim. The fact that you may have been ignorant to the facts which your claim would be based does not start the clock on prescription as long as your ignorance is not willful, negligent, or unreasonable.
PEREMPTION
Peremption, on the other hand, is the period of time fixed by law for the existence of a right. So, you have a right to sue an attorney based on their alleged legal malpractice for a period of time fixed by law. If this right is not exercised in a timely manner, then the right to sue your former attorney extinguishes. In other words, prescription sets a time limit within which you are allowed to seek enforcement of a right, while peremption completely does away with the right. Another important distinction betweenthe two concepts is that prescription may be suspended, or interrupted by the filing of a lawsuit against your former attorney. Peremption is not subject to suspension or interruption.
Moreover, peremptive periods are not applicable in cases of fraud. In the 2015 case Lomont v. Meyer-Bennet, the Louisiana Supreme Court expanded the scope of this exception. Importantly, an attorney is not allowed to conceal acts of malpractice until three years after the alleged malpractice. A lawyer’s silence following malpractice is “fraud” sufficient to stop the clock on your three-year window for filing suit against an attorney. Further, the clock is stopped until the client becomes aware of the deception.
Although your former attorney will attempt to say that your malpractice claim does not exist, Whaley Law Firm is well equipped to provide appropriate legal representation in such a matter. Whaley Law Firm can help you assess the strength of your case and the appropriate next step.
Additional Sources:
1 La. Prac. Pers. Inj. § 7:232 (2018 ed.)
Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice §1.1 (1st ed. 2006).