Ethics


should be aware that Maryland law is not identical to the law of neighboring jurisdictions with regard to these statutory provisions. For example, imprisonment is no longer a recognized disability that extends the statute of limitations under Maryland law, CJ §5-201, but under District of Columbia law “imprisonment” remains a recognized disability if a plaintiff is incarcerated at the time the cause of action accrues. As with statutes of limitations, not all statutory “tolling” provisions are set forth in and Judicial Proceedings Article. For example, when a tort claim against a third party responsible for an injury is filed subsequent to a workers’ compensation claim, Maryland Code Annotated, Labor and Employment Article, §9-202(d), extends the limitations period for plaintiffs who have been awarded workers’ compensation for their injury by two (2) months. Hayes v. Wang, 107 Md.App. 598, 600-02, 669 A.2d 771 (1996); and Letellier v. Shopco U T Ass’n, 2009 U.S. Dist. LEXIS 103083, **5- 7 (D. Md. 2009). Even when Maryland law clearly applies, therefore,


management of statutes of limitations or deadlines is often more complex that it would appear at first blush.


II. What to Do When You “Screw Up”


Code Annotated, Commercial Law Article (hereinafter “CL”), §2-313, 2-314 and 2-315.


CL §2-725 establishes that the


statute of limitations on action for breaches of warranty is four years, i.e., such an action “must be commenced within four years after the cause of action has accrued.” Unlike most civil cases in Maryland, the discovery rule, does not apply, and breach of warranty causes of action accrue “regardless of the aggrieved party’s lack of knowledge of the breach.” Master Financial, Inc. v. Crowder, 409 Md. 51, 972 A.2d


864 (2009) provides an example of a case in which the Court of Appeals ultimately disagreed with the analysis of both the Circuit Court and the Court of Special Appeals (not to mention the analysis of the U.S. District Court for the District of Maryland when applying Maryland law in a prior, similar, case), as well as with the analysis of the attorneys for both sides, with regard to which of Maryland’s statutes of limitation was applicable to the primary claims asserted by the plaintiffs. Crowder is also an example of a case in which different Maryland statutes of limitations applied to different claims asserted by the plaintiffs. Subtitle 2 of Title 5 of the Courts and Judicial Proceedings


Article also contains several statutory provisions for “computing time” pursuant to which statutes of limitations applicable to claims are “tolled” or extended under certain circumstances. As with statutes of limitations, supra, Maryland attorneys


38 Trial Reporter / Winter 2012


If attorneys believe that they have committed errors in managing the statute of limitations or managing deadlines, they should promptly investigate to determine if they have, in fact, committed errors. If such investigation establishes that errors were committed, then attorneys should promptly disclose such errors to their clients. Pennington, 387 Md. at 577-79, 595- 97. Failure to disclose errors to clients regarding attorneys’ management of the statute of limitations violates MRPC 1.4, and intentional failure to disclose also violates MRPC 8.4. Pennington, 387 Md. at 579, 581-85, 593, 595.


If attorneys


continue to represent clients without disclosing such errors, MRPC 1.7(b) and 1.16(a)(1) are also violated. Pennington, 387 Md. at 579-81, 595. By contrast, prompt disclosure of such an error may lead to no discipline unless the error is part of an ongoing pattern, as not every error or oversight, even if it is negligent, supports a finding of a violation of Maryland Rule of Professional Conduct 1.1 (Competence) or 1.3 (Diligence). Pennington, 387 Md. at 594; Tompson; and Kemp, 335 Md. at 10-18. Attorneys should also promptly report to their insurance


carriers when they determine that they have made an error in managing the statute of limitations or deadlines. Failure to report facts that would lead an objectively reasonable attorney to believe that a claim seeking damages might be filed in the future constitutes grounds for denial of coverage under attorneys’ errors and omissions policies. See, e.g., Culver v. Continental Ins. Co., 1 F.Supp.2d 545 (D.Md. 1998), aff’d, 11 Fed. Appx. 42 (4th Cir. 1999); Maynard v. Westport Ins. Corp., 208 F.Supp.2d 568


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