The Trusts and Estates Section of the California Bar is praying for a special statute of limitations that would, according the legal reform group HALT, “effectively immunize estate planners from malpractice liability.” See HALT’s Press Release (02-01-04) . As HALT explains:
Current law tolls the statute of limitations for legal malpractice actions until a plaintiff sustains actual injury, and in the context of estate planning, this usually occurs at the time of probate. At that point, the plaintiff must file suit within a year of when she discovers or should have discovered the facts constituting the attorney’s wrongful act or omission or within four years from the date of the wrongful act or omission, whichever occurs first.
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Eager to shield themselves from liability after they have drafted a trust or will, estate planners are urging the [California Law Revision] Commission to recommend a special statute of repose exception for estate planning malpractice. Under a statute of repose, victimized plaintiffs would have only a few years after the drafting of an estate plan-the proposals range from five to 10 years-to bring a legal malpractice action.
In the alternative, estate planners recommend a notice-triggered time limit. Under this scheme, an estate planner would send her client a letter terminating the attorney-client relationship and triggering a four-year period to commence suit for malpractice. Beneficiaries would receive no notice.
HALT Executive Director James C. Turner stated that “This ill-conceived proposal would cut off meaningful accountability for estate attorneys and should be rejected by responsible members of the bar.” Personally, I’m especially moved by the whining argument of one attorney before the California Commission (quoted in a Los Angeles Daily Journal article, Jan. 30,2004, by HALT’s James C. Turner and Suzanne M. Mishkin):
“[T]wenty years later I still have to worry about the hundred or so estate plans I worked on as a fledging associate! And unless you do something about it, I will have to worry about it twenty years hence!” She went on to complain that the “specter of that Sword of Damocles still hanging over my gray and trembling head twenty years from now is not pleasant.”
HALT’s response rings true: “The problem is not the expense of malpractice insurance; the problem occurs when attorneys draw up estate plans-legal instruments that are often the most important and precious to clients and families-without possessing the requisite skill and experience or exercising the necessary care. The statute of limitations for legal malpractice should not be dramatically altered to immunize the errors of inexperienced and incompetent attorneys.
HALT’s full submission to the California Commission is available here.