The objective of The Ethics and Professional Liability Bulletin is to keep legal professionals informed of recent developments and trends in the areas of legal ethics, professionalism, and professional liability.
April 5, 2021 – Ohio Senate Bill Number 13, which is to take effect on June 14, 2021, establishes a four-year statute of repose for legal malpractice claims. This bill will amend current Ohio Revised Code 2305.11, which currently provides for a one-year statute of limitations period for legal malpractice claims, and will enact R.C. 2305.117 to set forth a four-year statute of repose for such claims.
While a statute of limitations provides “a time limit for suing in a civil case, based on the date when the claim accrued,” a statute of repose, on the other hand, “puts an outer limit on the right to bring a civil action,” which is measured “from the date of the last culpable act or omission of the defendant.”[i] In other words, a statute of repose can be thought of as a cut-off or absolute bar to a claim.
Currently, R.C. 2305.11(A) establishes a one-year statute of limitations period for legal malpractice actions:
(A) An action for libel, slander, malicious prosecution, or false imprisonment, an action for malpractice other than an action upon a medical, dental, optometric, or chiropractic claim, or an action upon a statute for a penalty or forfeiture shall be commenced within one year after the cause of action accrued, provided that an action by an employee for the payment of unpaid minimum wages, unpaid overtime compensation, or liquidated damages by reason of the nonpayment of minimum wages or overtime compensation shall be commenced within two years after the cause of action accrued.
(Emphasis added).[ii] Senate Bill 13 will amend R.C. 2305.11(A) to add clarity that it does, in fact, apply to actions for “legal” malpractice.[iii]
In Ohio, a cause of action for legal malpractice accrues upon the later of:
In practice, the discovery rule means that a legal malpractice action could be brought many years after the legal services were provided. For example, in Vassil v. Gross & Gross, L.L.C., 2011-Ohio-1920, 2011 WL 1583328 (Ohio App. 8th Dist. 2011), the one-year statute of limitations on the plaintiff’s legal malpractice claim stemming from defendants’ preparation in 2005 of an asset purchase agreement did not begin to run until an arbitrator upheld the agreement in 2008.
The newly-enacted R.C. 2305.117 will place limitations on the application of the discovery rule as it pertains to legal malpractice claims. R.C. 2305.117(B) will specifically provide for a four-year statute of repose for legal malpractice actions:
(B) Except as to persons within the age of minority or of unsound mind as provided by section 2305.16 of the Revised Code, and except as provided in division (C) of this section, both of the following apply:
(1) No action upon a legal malpractice claim against an attorney or a law firm or legal professional association shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the legal malpractice claim.
(2) If an action upon a legal malpractice claim against an attorney or a law firm or legal professional association is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the claim, then, any action upon that claim is barred.
(Emphasis added). Accordingly, an outside limit of four years after the allegedly tortious act or omission will be placed on a plaintiff’s ability to bring a claim asserting legal malpractice.
However, R.C. 2305.117(C) will provide some leeway beyond the four-year statute of repose but only for a claim discovered just before expiration of the statute of repose:
(C)(1) If a person making a legal malpractice claim against an attorney or a law firm or legal professional association, in the exercise of reasonable care and diligence, could not have discovered the injury resulting from the act or omission constituting the alleged basis of the claim within three years after the occurrence of the act or omission, but, in the exercise of reasonable care and diligence, discovers the injury resulting from that act or omission before the expiration of the four-year period specified in division (B)(1) of this section, the person may commence an action upon the claim not later than one year after the person discovers the injury resulting from that act or omission.
(2) A person who commences an action upon a legal malpractice claim under the circumstances described in division (C)(1) of this section has the affirmative burden of proving, by clear and convincing evidence, that the person, with reasonable care and diligence, could not have discovered the injury resulting from the act or omission constituting the alleged basis of the claim within the three-year period described in that division.
(Emphasis added).
Adoption of this new statute brings legal malpractice claims in line with claims against other professionals, such as physicians, which already have an established statute of repose period.[v]
Additionally, Senate Bill 13 shortens the statute of limitations for actions upon an expired written contract from eight years to six years, and an expired oral contract from six years to four years.
Conclusion and Practical Takeaway: Senate Bill 13, which sets a four-year statute of repose for legal malpractice claims brings certainty to Ohio attorneys that they will not be held liable more than four years after an allegedly tortious act or omission.
Ulmer’s Ethics & Professionalism and Professional Liability Practice Groups offer strategic advice to attorneys and law firms regarding their ethical obligations and defend them in critical matters involving disciplinary complaints, internal law firm disputes, and legal malpractice. With decades of experience handling these sensitive matters, Ulmer’s team of experienced attorneys helps clients confront these challenges so they can keep their focus on the practice of law. Please feel free to reach out to our attorneys if you have any questions.
The information provided in this bulletin speaks only to the information and guidance we have available as of the date of publication and is subject to change. We will continue to follow further issued guidance and regulations and endeavor to post those updates via our website. This legal update was created by Ulmer & Berne LLP, and is not intended as a substitute for professional legal advice. Receipt of this bulletin, by itself, does not create an attorney client relationship. For any questions, or for further information, please contact Alvin E. Mathews, Jr. at amathews@ulmer.com.
[i] Union Loc. Sch. Dist., Bd. of Educ. v. Grae-Con Constr., Inc., 137 N.E.3d 122, 127 (Ohio App. 7th Dist. 2019) (citing Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-7432 (Ohio 2016)).
[ii] R.C. 2305.11(A) will be revised to add clarity that it does in fact apply to actions for “legal malpractice.”
[iii] R.C. 2305.11. (A), as amended, will read: An action for libel, slander, malicious prosecution, or false imprisonment, an action for malpractice other than an action upon a medical, dental, optometric, or chiropractic claim, an action for legal malpractice against an attorney or a law firm or legal professional association, or an action upon a statute for a penalty or forfeiture shall be commenced within one year after the cause of action accrued, provided that an action by an employee for the payment of unpaid minimum wages, unpaid overtime compensation, or liquidated damages by reason of the nonpayment of minimum wages or overtime compensation shall be commenced within two years after the cause of action accrued.
[iv] Hilario v. Taft, Stettinius & Hollister, L.L.P., 2011-Ohio-1742, ¶ 18, 194 Ohio App. 3d 157, 163, 955 N.E.2d 391, 395 (Ohio App. 8th Dist. 2011).
[v] See R.C. 2305.113(C).