The Original Recipe
The legal malpractice statute of limitations had been set under RC 2305.11(A):
An action for…malpractice other than an action upon a medical, dental, optometric, or chiropractic claim…shall be commenced within one year after the cause of action accrued…
Ohio’s judicially created discovery rule has determined when the cause of action accrues:
Under R.C. 2305.11(A), an action for legal malpractice accrues and the statute of limitations begins to run when…the client discovers or should have discovered that his injury was related to his attorney’s act or non-act…or when the attorney-client relationship for that particular transaction or undertaking terminates, whichever occurs later. Zimmie v. Calfee, Halter and Griswold, 43 Ohio St.3d 54, 58 538 N.E.2d 398 (Ohio 1989).
A former client exercising reasonable care and diligence may not discover your legal error for decades. With no limit on the discovery period, she could try to sue long after retirement.
The General Assembly, urged on by the Ohio State Bar Association, has enacted a four-year statute of repose, effective June 16, 2021. Intentionally comparable to the one in place since 2003 for medical malpractice, it ultimately provides a second backstop of protection against long-term malpractice liability, even if the injury cannot reasonably be discovered until later.
Working in tandem with the one-year statute of limitations, the statute of repose may loosely be thought of as a four-year deadline for the claimant to discover the wrong. And while the statute of limitations clock can begin to run at various times, the statute of repose clock always starts at the time of the negligent act or omission.
RC 2305.11(A) still sets the statute of limitations at one year from accrual of the cause of action, but with a phrasing change expressly listing legal malpractice.
Newly created section RC 2305.117 deals exclusively with legal malpractice. RC 2305.117(A) reiterates the one-year statute of limitations.
RC 2305.117(B) establishes the four-year statute of repose for all claimants except minors and persons of unsound mind:
(1) No action upon a legal malpractice claim…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…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.
RC 2305.117(C)(1) provides up to an additional year to file for some claimants:
If a person making a legal malpractice claim…in the exercise of reasonable care and diligence, could not have discovered the injury…within three years after the occurrence of the act or omission, but…discovers the injury…before the expiration of the four-year period…, the person may commence an action upon the claim not later than one year after the person discovers the injury…
RC 2305.117(C)(2) requires proof by clear and convincing evidence that those claimants seeking more than four years to file could not have reasonably discovered the injury within three years.
Unchanged RC 2305.16 — to which RC 2305.117(B) refers minor and unsound mind claimants for special processing — delays accrual of the cause of action for them:
Unless otherwise provided in [RC 2301.117], if a person entitled to bring [a malpractice action] is, at the time the cause of action accrues, within the age of minority or of unsound mind, the person may bring it within the respective times limited by [RC 2305.117] after the disability is removed.
Before returning these two classes of claimants to be measured by the respective timekeepers of RC 2305.117(A) and (B), this provision merely delays the accrual of the cause of action, which, in turn, delays the start of the one-year statute of limitations clock. But this provision does not change the date of the act or omission, which is the express trigger of the statute of repose clock under RC 2305.117(B).
Strain is a frequent speaker and writer on traffic law, ethics, and professionalism. A solo practitioner in Cincinnati for almost 40 years, he practices exclusively DUI defense.