Louisiana Personal Injury Lawyer Blog
In April 2006, Laurie Jenkins hired Chet Medlock to build a metal building for $25,000, payable in three equal payments. When Laurie discovered that the building was unsatisfactory and would need a number of repairs, she hired Denham Springs attorney Larry G. Starns to represent her interests in the dispute.
Later that year, Medlock sued Laurie for failure to make the last payment, and Starns neglected to file any documents in the suit on behalf of his client. Shortly thereafter, the trial court entered a judgment against Jenkins, a notice of which Jenkins received in the mail. It was not until September 2008, however, when Medlock garnished Laurie’s bank account that she knew something had gone “seriously wrong.”
Louisiana Malpractice Statute
Laurie retained another lawyer to sue Starns for legal malpractice, but they faced a challenge: Louisiana law provides that a client who suspects legal malpractice must file a claim against their attorney within one year of an act of malpractice or within one year of discovering an act of malpractice if the malpractice was previously unknown or undiscoverable by the client (La. R.S. 9:5605).
The statute is an example of a peremptive period, or what other states call a statute of limitations. Because Laurie filed her lawsuit more than a year after the court entered judgment against her, her claim would have to be dismissed unless she was exempt from the statute.
Continuous Representation Rule
So Laurie and her lawyer found a potential exception to the peremptive period, a concept known as the continuous representation rule, which means that a client should be able to trust his or her attorney while the attorney is working for the client. Laurie argued that because Starns continued to represent her up until the garnishment, she had no reason to believe that he was not working to correct the judgment against her, and therefore, the peremptive period of La. R.S. 9:5605 should be suspended until after Starns ceased representing her.
The Supreme Court rejected Laurie’s argument. The Court held that Laurie first knew or should have known about the malpractice when she received notice of the judgment entered against her, not when her bank account was garnished over a year later. Because Laurie received the notice in January 2007 and filed her claim for malpractice in November 2008, her lawsuit was too late and therefore had to be dismissed.
The Court, following the long-established doctrine of judicial deference to the legislature, reasoned that the law in La. R.S. 9:5605 was clear and unambiguous, and therefore courts should not apply the court-created continuous representation exception to allow Laurie to bring her suit.
Medical Malpractice Rules Are Different
Interestingly, two justices dissented from the opinion, arguing that the Court currently recognizes a similar exception for medical malpractice claims, the continuous treatment rule. As long as a doctor continues to treat a patient, the peremptive period applicable to medical malpractice is suspended. These justices argued that the Court should have upheld the continuous representation rule for the same reasons the Court applies the continuous treatment rule—to prevent “absurd” results.
What You Should Do to Protect Yourself
In this case, the lawyer himself admitted that he committed malpractice, but his client was still unable to recover damages from him because she filed her suit too late. If you suspect your lawyer has committed legal malpractice, consult with another attorney right away. A significant delay may mean that you are unable to recover for any harm caused to you.