This page contains a Flash digital edition of a book.
Ethics


Managing Your Statute Of Limitations


(And What to Do When You Screw Up)


Stephan Y. Brennan


When it comes to professional liability claims and disciplinary complaints against attorneys,


there are two


overarching principals. Te first principal is prevention. Te second principal is to react in a manner consistent with the Maryland Rules of Professional Conduct (hereinafter “MRPC”) on those unfortunate occasions when prevention has not worked. Te topic of this article — “Managing Your Statute of Limitations (and What to Do When You Screw Up)” — encompasses both of these principals.


I. Managing Your Statute of Limitations


Claims Result from Administrative or Substantive Errors Te 1986 American Bar Association study Profile of Legal


Malpractice: A Statistical Study of Determinative Characteristics of Claims Asserted Against Attorneys (ABA May 1986) (hereinafter cited as “ABA Study”) remains a useful statistical benchmark, in part because its data are similar to data in statistical reports that have subsequently been released by the ABA Standing Committee on Lawyers’ Professional Liability. Approximately 25% of all claims against attorneys result from failure to manage the statute of limitations, or to manage deadlines that have the same effect. (ABA Study, p. 7 n.2) Attorneys’


failure to properly manage the statute of


limitations can result from either administrative or substantive errors. Failure to calendar statutes of limitations accounts for approximately 11.3% of claims, and failure to calendar is an administrative error. (ABA Study, p. 7 n.2) Failure to react to calendar accounts for approximately 7.7% of claims, and such failures are also administrative in nature. (ABA Study, p. 7 n.2)


By contrast, attorneys’ failure to know the applicable statute of limitations or deadline is a substantive error, which gives rise to approximately 6.8% of claims. (ABA Study, p. 7 n.2)


Impact of Claims Caused by Failure to Manage Statute of Limitations


Te impact of claims against attorneys caused by failure


to manage the statute of limitations is statistically significant — approximately 25% of all claims, supra — but the impact is also significant in other ways. For example, if a civil claim is asserted against the attorney the viable defenses will likely be limited to an effort to undermine the former client’s claimed damages and, possibly, lack of causation. In other words, there will not likely be a standard of care defense, but the former client will have to establish causation and damages through the “trial- within-a-trial” or the “case-within-a-case” approach. Tomas v. Bethea, 351 Md. 513, 530-36, 718 A.2d 1187 (1998); Suder v. Whiteford, Taylor & Preston, LLP, 413 Md. 230, 243-44, 992 A.2d 413 (2010). If a disciplinary complaint is made under such circumstances, the best approach to defending is often to admit that a mistake was made, but to assert that an oversight or an error, particularly when not part of an ongoing pattern, does not constitute sanctionable conduct. Attorney Grievance Commission


Trial Reporter / Winter 2012 33


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60  |  Page 61  |  Page 62  |  Page 63  |  Page 64  |  Page 65  |  Page 66  |  Page 67  |  Page 68