California Legal Malpractice

Quick Summary

The statute of limitations for suing an attorney for legal malpractice is one year. (Code of Civil Procedure Section 340.6(a).)

The one year period begins when a party suffers actual injury due to the attorney's actions.

The one year period is extended during the time when the attorney represents the party for the subject matter in which the malpractice occurred.

Law Review

Question: What If I Learn About the Malpractice From What is Said in Mediation Where I Settled a Case?

Answer: There is no malpractice due to mediation confidentiality rules.

What is said during mediation is confidential and not admissible to use in a lawsuit. (Evidence Code Section 1119.) This includes statements used as the basis for legal malpractice.(Cassel v. Superior Court (2011) 51 Cal.4th 113, 132-35.)

The result is that if you need to rely upon something said during mediation to prove your claim, including a legal malpractice claim, you will lose the issue because the statement is not admissible to prove wrongdoing.

One might think the basis for the malpractice is some act learned during mediation, and the act can be the basis for a legal claim. Often yes, but if the mediation results in a settlement then the damages arise from settling a claim for less than it was worth. Since what was said by the attorney in mediation cannot be used as evidence, and what was said caused the settlement, a party's malpractice claim can be barred by confidentiality rules in mediation.

Note: Mediation is not the same as a settlement conference ordered by the court. (Evidence Code Section 1117(b)(2).)

Lawzilla References

Los Angeles Superior Court Ruling in Malpractice Claim Against Keehn and Associates