Last week, the Oregon Supreme Court ruled that a client could possibly sue his attorney nearly six years after the attorney allegedly screwed up, despite Oregon's two-year statute of limitations on legal malpractice lawsuits. The case of Darell Kaseberg v. Davis Wright Tremaine, LLP, includes an important discussion of the "discovery rule," which applies to many statutes of limitations, not just the one for legal malpractice claims. The Supreme Court ruled that the trial judge should not have thrown out the lawsuit because, on the evidence before it, a jury could have determined that a "reasonable person" would not have discovered that he had a legal malpractice claim until years after the attorney allegedly made a mistake.
The facts are these. Mr. Kaseberg's attorney, Iain Levie, settled a dispute during trial. They parties informed the judge that they had come to terms and stated the terms on the record in open court. An important term for Mr. Kaseberg that the other party (the Wheelers) release a property lien within two weeks. That critical deadline was not stated on the record and not put into the final paperwork. When the Wheelers did not release the lien on time, it allegedly cost Mr. Kaseberg over $250,000. At the time, Attorney Levie told Kaseberg he had a "great case" for breach of contract against the Wheelers. Years later, when Kaseberg hired a lawyer for the breach of contract claim, the new attorney discussed the possibility of a legal malpractice lawsuit.
The trial court held that Kaseberg should have known within about two weeks of the settlement that his attorney should have done more to make sure the Wheelers removed the lien within two weeks.
Oregon's Supreme Court said, in effect, "Not so fast, my friend." The statute of limitations begins when a reasonable person should have known three things: (1) that he suffered a loss, (2) what conduct caused the loss, and (3) that the conduct is something that can be sued over ("tortious conduct"). Although the Mr. Kaseberg knew that the Wheelers did not remove their lien within two weeks, Kaseberg believed the problem was with the Wheelers, not with his own attorney. In fact, attorney Levie, himself, reinforced that belief when he said Kaseberg had a "great case" against the other party. So, the Oregon Supreme Court held that a jury - not the trial judge -- needs to decide whether a reasonable person should have discovered the claim sooner.
But that was not the end of the story. The court gaveth, and the court, tooketh away. The court hinted that Kaseberg might still lose his legal malpractice lawsuit. On the timing issue, the court noted that more evidence could be submitted regarding what a reasonable person should have known. On the merits, the court indicated that even though Attorney Levie did not specify a deadline for the Wheeler's lifting the lien, the deadline was probably implied by the other facts. In other words, the court was suggesting that even though Kaseberg might be able to get past the statute of limitations, it is not so clear that he has a winning claim against attorney Levie.
For people who think their attorney messed up, the bigger point is to ask questions and get answers as soon as you can. Don't put off potential claims for years. The risks are not worth it. If you think your Oregon attorney committed legal malpractice, feel free to call me.
Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234
The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.
