The statute of limitations for filing a malpractice claim will vary by both time period allowed for filing as well as by jurisdiction. In Pennsylvania, the statute of limitations is two years for tort claims and four years for contract claims. In Delaware, the statute is three years for tort claims; Delaware does not recognize a breach of contract for malpractice claims against an attorney. In malpractice claims, it can be difficult to distinguish a contract claim from a tort claim, as when a plaintiff claims that an attorney breached the contract to the plaintiff by failing to exercise a duty of ordinary care. In this instance, it may appear to be a breach of contract but the attorney’s negligence needs to be proved. Sometimes, then, a plaintiff can overcome a torts statute by pleading a case for a breach of contract.
Pennsylvania courts use the occurrence rule to decide when the statute of limitations begins. Under the occurrence rule, the statutory period begins with the alleged breach, unless there is evidence of fraud or concealment of the attorney’s malpractice. There is an additional exception to the occurrence rule for statutory limits called the equitable discovery rule, which is used when the plaintiff, despite the exercise of due diligence, is unable to know of the injury or its cause. Recently, Pennsylvania and Delaware courts both have used inquiry notice in some instances to determine when a statutory period starts to run, instead of the occurrence rule. Inquiry notice is the presence of a red flag during the course of legal representation, or something that should give the client notice that there may be a claim for legal malpractice. Most jurisdictions, however, including Delaware, have decided that the statutory period will not begin as long as the plaintiff is still being actively represented by the lawyer who may have committed malpractice. Pennsylvania has not adopted this rule.