Legal Malpractice Limitations in California
When your attorney messes up, you may find yourself with yet another lawsuit on your hands--this time, against him--and it is essential to pursue it within the time frame set out in the California codes, termed the statute of limitations. Legal malpractice in California can be any wrongful act or omission your lawyer commits in the course of his professional representation. One omission constituting legal malpractice is missing the statute of limitations in the underlying case.
General Statute of Limitations
In general, you have one year to sue your lawyer from the moment you discover, or through the use of reasonable diligence should have discovered, malpractice. The statute recognizes that--unlike a traffic accident--a legal error is not always obvious to a layperson; the one-year statute does not begin to run until the discovery of the mistake. However, the statute provides for an alternate four-year statute that runs from the mistake itself, specifying that whichever period expires first will control. It sets an outside limit of four years for bringing the suit in most cases.
Malpractice in Criminal Action
If you hired the lawyer to represent you in a criminal charge, his error might have sent you to jail. As part of your malpractice case, you will need to establish your innocence of the underlying criminal charge. California law provides a separate statute of limitations for this situation; you must bring the action within two years from the time a judge finally exonerates you in the criminal matter. This is not subject to the outside-limit four-year statute.
Tolling of Malpractice Statute
Other exceptions to the general statutes are specified in the codes. These situations are said to "toll" the statute of limitations, which means that the time period does not run during the time they exist. The statute is tolled in these circumstances: while you have not suffered actual injury; while the attorney continues to represent you regarding the same matter; and while your attorney willfully conceals the facts of the malpractice when such facts are known to the attorney (although this latter circumstance tolls only the four-year statute.) The statute is also tolled while you suffer a legal or physical disability that restricts your ability to commence legal action.
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