July 1, 2013

Fred Herrmann authors “It Must be a Duck: Honoring the Attorney Professional Negligence Statute of Limitations”

Traditionally, courts have determined the applicable statute of limitations by focusing on the source of the duty giving rise to the claim. 5 In a legal malpractice action, the source of the duty is, of course, the attorney-client relationship. 6 However, some recent decisions ignore this ″duty″ analysis, suggesting the viability of a distinct cause of action by clients against their lawyers for common law breach of fiduciary duty (three-year statute of limitations) based solely on a heightened degree of scienter–a ″more culpable state of mind″–purportedly necessary to prove a breach of fiduciary duty. 7

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