Ralph Adams 0000-00-00 00:00:00
Litigators Beware: Ask Not For Whom The Statute Tolls, It Tolls For Thee In Arizona the statute of limitations for legal malpractices cases is generally two years (A.R.S. § 12-542). A legal malpractice claim accrues when (1) the plaintiff knows or reasonably should know of the attorney’s negligent conduct; and (2) the plaintiff’s damages are ascertainable, and not speculative or contingent. Glaze v. Larsen, 207 Ariz. 26, 83 P.3d 26 (2004). There are, however, several factors which may toll the period of limitations. Among the many, and of great import, is the distinction between negligence that occurs “in litigation” and negligence that occurs outside litigation. A fairly recent Arizona case discusses the effect of negligence occurring in litigation concerning the statute of limitations: The Best Choice Fund, LLC v. Low and Childers, P.C., 1 CA-CV 10-0860 (AZAPP1). The Court of Appeals in Best Choice, citing Cannon v. Hirsch Law Office, P.C., 222 Ariz. 171, 213 P.3d 320 (App. 2009), explained that “The hallmark of ‘litigation’ is an adversary proceeding, which is characterized by the existence of opposing parties and contested issues.” The Court went on to explain that: “In contrast [to litigation], when a legal malpractice action arises in a non-litigation context, the cause of action accrues when the plaintiff knew or should have known that its attorneys had provided negligent legal advice, and that the attorneys’ negligence was the direct cause of harm to the plaintiff, notwithstanding that the plaintiff’s damages may not have been fully ascertainable at that time. This is because the harm is ‘irremedial’ or ‘irrevocable’ at that point and will not be avoided by a future appeal or other court proceedings.” The import for legal malpractice actions is that, if the negligence occurs “in litigation,” the statute is tolled. Damages based on an attorney’s acts and omissions in the course of litigation become ascertainable and non-speculative at the time the appellate process is either waived or completed. Amfac Distribution Corporation v. Miller (Amfac I), 138 Ariz. 155, 673 P.2d 795 (App. 1983), approved as supplemented, 138 Ariz. 152, 673 P.2d 792 (1983). As the Court stated in Amfac I, “We must also point out that in most cases an appeal extends far beyond the two-year statute of limitations.” As a consequence, a legal malpractice action could very well be initiated many years after the alleged negligence occurred.
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