Lawyer malpractice or attorney malpractice is a real thing. You may ask “If my lawyer screwed up my case and I lost money because of it, can I sue him or her?” or simply put “can I sue my lawyer?” Well, yes. If your attorney’s actions or failure to act has caused you financial harm, you may be entitled to make a claim for legal malpractice. As you can imagine, suing attorneys can be difficult and unpleasant. But, lawyers are not exempt from the law. To the contrary, in many ways we are held to a higher standard. Lawyers are governed by the Rules of Professional Conduct, and can be liable if we fail to act reasonably, and our negligence results in your harm.
As outlined by the Nevada Supreme Court in the case of Kahn v. Morse & Mowbray, 117 P.3d 227 (Nev. 2005), the elements of legal malpractice in Nevada are:
Generally speaking any time an attorney had a duty to do something for you, or had a duty to avoid doing something, and the attorney failed in his or her duty, that is malpractice. Some examples of malpractice are:
Many attorneys believe that suing other attorneys is a form of being a traitor. It’s a similar flawed mentality that many high crime communities suffer from: the false belief that reporting crimes is somehow “snitching”. The problem with this idea is that the legal community (like many of the communities with high crime) is stuck with bad actors who become emboldened by the fact that nobody seems willing to stop them. We will take these cases; not because we have never made a mistake while representing clients, but because we all need to strive for a better and more professional legal community, and because victims of attorney malpractice need to be made whole.
What is the statute of limitations for suing an attorney in Nevada? Well, like all legal questions asked to an attorney, the best answer is always, “It depends.” This one is no different. Here are some factors and legal standards to consider when deciding what the statute of limitations is on your attorney malpractice lawsuit as outlined by the Nevada Supreme Court in the case of Branch Banking & Trust Co. v. Gerrard, 432 P. 3d 736 (Nev. 2018):
NRS 11.207(1) provides a two-year statute of limitations, or four-year statute of limitations for legal malpractice claims, running from the date the client discovers or should have discovered the claim (two years) or the date the client suffered damage (four years), whichever expires earlier. Our case law engrafts a “litigation malpractice tolling rule” onto NRS 11.207(1)’s two-year “discovery” rule. See Brady, Vorwerck, Ryder & Caspino v. New Albertson’s, Inc., 130 Nev. 632, 642, 333 P.3d 229, 235 (2014). As its name suggests, the litigation malpractice tolling rule applies to malpractice committed by a lawyer while representing a client in a lawsuit. See Moon v. McDonald, Carano & Wilson LLP, 129 Nev. 547, 552, 306 P.3d 406, 410 (2013) (holding that the litigation malpractice tolling rule does not apply to non-adversarial or transactional representation).
The litigation malpractice tolling rule holds that, in cases involving litigation malpractice, “the damages for a malpractice claim do not accrue until the underlying litigation is complete and, thus, a malpractice claim does not accrue and its statute of limitations does not begin to run during a pending appeal of an adverse ruling from the underlying litigation.” Brady, Vorwerck, Ryder & Caspino, 130 Nev. at 638, 333 P.3d at 232. In effect, two events must occur before the two-year statute of limitations in NRS 11.207(1) starts to run on a litigation malpractice claim: first, the client must discover the malpractice; second, even after the malpractice is discovered, the period is tolled until the client suffers actual “damages,” which Nevada law holds does not occur until the appeal, if any, from the adverse judgment is resolved. See Hewitt v. Allen, 118 739*739 Nev. 216, 221, 43 P.3d 345, 348 (2002)
Typically the answer to this is to say the amount that you should have received (or not had to pay), if your attorney did his or her job. One of the reasons why legal malpractice cases are so difficult and expensive to litigate, is that most courts will require that the plaintiff prove what likely would have happened if the attorney did not commit malpractice, in order to establish damages in the malpractice case. In other words, in order to establish causation and damages, a plaintiff must prove what has been characterized as a “case within a case,” that is, the plaintiff must demonstrate that the case and the claim underlying the legal malpractice action would have been successful if the attorney had acted in accordance with his or her duties. The way this is accomplished, is the courts conducting a “trial within a trial”. So, your malpractice attorney must demonstrate how much money you would have received in the case where your fist attorney made a mistake, and then show how your attorney’s malpractice caused you to not recover those funds.