What is the Statute of Limitation for Legal Malpractice Cases In Georgia?

Does the sand run out in 4 or 6 years?

It has been considered fairly settled law in Georgia that the statute of limitations for legal malpractice type claims was either four or two years, depending on the type of damages being sought.

If the plaintiff seeks to recover general damages, emotional distress, or punitive damages, then the statute of limitations is two years as these are tort types of damages.  If the plaintiff seeks damages to reputation, the limitations period is one year.  If the plaintiff was trying to recover simple damages proximately caused by the breach of the standard of care, then the statute of limitations was considered four years pursuant to Georgia’s breach of implied promises limitations period, OCGA 9-3-25.  Cheeley v. Henderson, 197 Ga. App. 543, 547, 398 S.E.2d 787, 791 (1990), revd on other grounds, 261 Ga. 498, 405 S.E.2d 865 (1991) (applying a two-year limitations period to certain tort claims and a four-year limitations to breach of contract claims); Hamilton v. Powell, Goldstein, Frazer & Murphy, 167 Ga. App. 411, 306 S.E.2d 340 (1983), affd 252 Ga. 149, 311 S.E. 2d 818 (1984) (also clearly stating the rational for treating professional liability claims as oral contracts).

In Newell Recycling of Atlanta, Inc. v. Jordon Jones and Goulding, Inc.,  the Georgia Supreme Court recently held in an engineering malpractice case that the six-year rule for written contracts applied to a professional liability claim where there was a writing that was sufficient to create a written agreement between the parties.  Under this scenario, the claim was subject to the six-year limitation period of OCGA 9-33-24 applying to written contracts. 

The attorneys that bring legal malpractice claims against attorneys are already looking to apply this holding to legal malpractice claims where there is any type of written retainer, fee agreement or other writing.

It is not at all clear that the Supreme Court meant to change the general rule for legal malpractice cases. In fact, the Court cited with approval Jankowski v. Taylor, Bishop & Lee, 154 Ga. App. 752, 269 S.E.2d 871 (1980), a legal malpractice claim involving a written fee agreement in which the Court of Appeals applied the oral contract four-year period (the case was affirmed by the Supreme Court, though the length of the limitations period was not part of the opinion).

This matter will likely be the subject of an appellate decision before the end of 2011.

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