Expert: New Ohio Law Shifts Legal Malpractice Landscape

Risk management report from Reminger Attorneys.

Guest Post by Jonathan Krol, Reminger Attorneys

Ohio recently has passed a statute of repose for legal malpractice claims to put a four-year deadline on filing said claims. On March 16, 2021, Governor DeWine signed Senate Bill 13 to add the repose provision (found at Ohio Rev. Code § 2305.117, effective June 14, 2021) to the existing statute of limitations.

This change significantly impacts the legal malpractice landscape in Ohio.  

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The statute of repose bars any lawsuit that is brought more than four years “after the occurrence of the act or omission constituting the alleged basis of the legal malpractice claim”—even if the aggrieved party does not discover the alleged harm within that timeframe.  It is worth noting that there are two exceptions provided under the statute: (1) tolling is permitted for “persons within the age of minority or of unsound mind” (id. § 2305.117(B)), and (2) if a claimant can prove by clear and convincing evidence that, in the exercise of reasonable care and diligence, he/she could not have discovered the alleged injury resulting from the malpractice within three years, but happens to discover the injury before the expiration of the fourth year, the claimant has one year from the date of discovery to file suit (id. at § 2305.117(C)(1), (2)).

Statute of Limitations for Legal Malpractice

Importantly, the amendment does not alter the one-year statute of limitations for legal malpractice claims, except that the repose provision places a definitive outside time limit on the filing of a claim.  The statute of limitations continues to bar legal malpractice actions filed more than one year from the date the claim accrues.  A legal malpractice claim accrues at the latter of: (1) a cognizable event whereby the claimant discovers or should have discovered the alleged malpractice, or (2) the attorney-client relationship for the particular transaction terminates.  See Zimmie v. Calfee, Halter & Griswold, 43 Ohio St.3d 54, 58 (1989).  Because the new statute of repose bars some malpractice claims that would otherwise be timely, it is likely that claimants will seek to recover under alternative theories with longer statutes of limitations—a tactic that is already commonplace where malpractice claims may be barred by the applicable statute of limitations.

Senate Bill 13 brings protection against stale legal malpractice claims in line with similar protections against medical malpractice claims that have existed for decades under Ohio law (albeit, with a number of constitutional challenges and amendments along the way).  Because the language of the newly enacted legal malpractice repose provision largely mirrors the court-tested language of the current medical malpractice statute of repose (found at Ohio Rev. Code § 2305.113(C) and (D)), it is unlikely that constitutionality-based challenges will succeed. 

It should also be noted that Senate Bill 13 amends other existing statutes of limitations, such as shortening the statute of limitations for contract claims: from 8 to 6 years for written contracts and 6 to 4 years for oral contracts (subject to certain exceptions).  (N.B. –  These changes only apply to actions on contract claims that accrue on or after June 14, 2021, the effective date of the amendment.)

If you have any questions regarding the newly enacted statute of repose or other amendments in Senate Bill 13, please feel free to contact any one of our Professional Liability Practice Group Members. 

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.

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