Forty-Eight States Are Probably Not Wrong: An Argument for Modernizing Georgia’s Legal Malpractice Statute Of Limitations
Forty-Eight States Are Probably Not Wrong : An Argument for Modernizing Georgia's Legal Malpractice Statute Of Limitations
Ben Rosichan 0 1 2
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In 1979, a Texas couple hired Chilton Maverick, a family friend, to
draft their divorce settlement agreement.1 At the husband’s request,
Mr. Maverick convinced the wife, Ms. Willis, to delete a provision
allowing her to live in their marital home until their child turned
eighteen by misinforming her that she would still have to consent if
the husband ever tried to sell the home.2
Willis sued Mr. Maverick for legal malpractice in 1981 after her ex-husband sold the home
without her consent.3 A Texas jury found
compensatory damages and $610,000 in punitive damages.4
moved for a judgment notwithstanding the
verdict by persuading the trial court that the statute of limitations had
Supreme Court found the facts of the case
confidence”6 between attorney and client, to reverse the trial court
*J.D. Candidate, 2017, Georgia State University College of Law. I would like to thank Lia, Matt, and the
rest of my family for supporting me through this process and throughout school. I would also like to
thank Professor Sobelson for your advice, and Douglas Chandler and Bret Moore for giving me my first
opportunity to do real legal work during my first summer and the idea for this note. Finally, I would be
remiss if I did not thank all of the amazing mentors that helped me transition from my previous career to
this wonderful profession, including Judge Totenberg and her clerks, Judge Goger and Lynette Jimenez,
and everybody at Barnes Law Group.
1. Willis v. Maverick, 760 S.W.2d 642, 643 (Tex. 1988).
3. Id. at 643–44.
4. Id. at 643.
5. Id. At the time, Texas had a two-year statute of limitations for “injury to the estate or to the
property of another, conversion of personal property, taking or detaining the personal property of
another, personal injury, forcible entry and detainer, and forcible detainer not later than two years after
the day the cause of action accrues.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (1985).
6. McClung v. Johnson, 620 S.W.2d 644, 647 (Tex. Civ. App. 1981). In this case, the Texas Court
of Civil Appeals held that in legal malpractice, like any action in tort, “a cause of action . . . accrues
GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 33:3
and adopt the discovery rule for legal malpractice actions in Texas.7
As the Texas Supreme Court defined the discovery rule in this case,
the statute of limitations runs from the date the plaintiff discovers or
should have discovered “the nature of the injury.”8
In Willis, the Texas Supreme Court also noted that “an ever
increasing majority of states have recognized the inherent unfairness
of commencing the statute of limitations in legal malpractice causes
of action on the date of the occurrence of the negligent act or
omission . . . .”9 Georgia and Arkansas are the last two states that
have declined to join the vast majority of states in modifying their
statutes of limitations for legal malpractice.10 Both states still adhere
to the occurrence rule, where the statute of limitations begins to
when the tort is completed, that is, the act committed and damage suffered.” Id. at 646 (citing Atkins v.
Crosland, 417 S.W.2d 150 (Tex. 1967)). Although the Court of Civil Appeals declared legal malpractice
a tort similar to medical malpractice, it declined to adopt the discovery doctrine in that case. Id. at 646–
7. Willis, 760 SW.2d at 645 (justifying adoption, in part, by noting “[t]he policy reasons relied upon
by Texas courts in adopting the discovery rule in actions for fraud, credit libel, and medical malpractice
are no less compelling in legal malpractice actions”). Part II, infra, discusses the definition and
implications of the discovery rule in greater depth.
The discovery rule first surfaced for medical malpractice actions. Ohio, for example, addressed
the statute of limitations for medical malpractice in a 1919 case, in which it held “that in an action for
breach of contract [based on medical malpractice] the statute of limitations does not begin to run until
the contract relation has been terminated.” Bowers v. Santee, 124 N.E. 238, 240 (Ohio 1919). Four years
later, the Ohio Court of Appeals applied Bowers to a legal malpractice case, discussed the discovery
rule, and held that Bowers applied to legal malpractice in addition to medical malpractice. McWilliams
v. Hackett, 19 Ohio App. 416, 418–20 (1923).
8. Willis, 760 S.W.2d at 644.
9. Id. at 646.
10. O.C.G.A § 9-3-25 (1962); ARK. CODE ANN. § 16-56-105(3) (1947) (granting a three-year statute
of limitations for “[a]ll actions founded on any contract or liability, express or implied”). In Goldsby v.
Fairley, the Arkansas Supreme Court noted that almost every other state had moved away from the
occurrence rule. 831 S.W.2d 142, 143 (Ark. 1992). The court also seemed to invite and encourage
legislative action by stating:
While this court has noted that other jurisdictions use different approaches in
determining when the cause of action accrues, we have stated that if such a
marked change is to be made in the interpretation of statutes that have long been
the law, it should be done prospectively by the legislature and not retrospectively
by the courts.
Id. The Arkansas Court of Appeals reiterated the three-year statute of limitations from the date of the
negligent act with language from a 1991 Arkansas Supreme Court decision claiming that the occurrence
rule has a “countervailing fairness to it,” as the discovery rule could make professionals liable “25 to 30
years after the [negligent act].” Rice v. Ragsdale, 292 S.W.3d 856, 861 (Ark. Ct. App. 2009) (quoting
Chapman v. Alexander, 817 S.W.2d 425, 426 (Ark. 1991)). In Rice, the Arkansas Court of Appeals also
noted that Arkansas’s history of rejecting the discovery rule dates back to at least 1877. Id.; see also
White v. Reagan, 32 Ark. 281, 291 (1877).
accrue on the date the negligent act or omission occurs.11 Most states
have recognized the inherent pitfalls of a legal malpractice statute of
limitations similar to Georgia’s and have adjusted their laws
accordingly.12 The vast majority of attorneys do not resort to trickery
like Chilton Maverick, but one case like that is one too many. Cases
like Willis portray the profession in a negative light, even if they are
rare. If and when a case like Willis surfaces in Georgia, the courts
should be ready to protect the interests of the clients and the legal
profession with a fair statute of limitations.
Georgia has not had the kind of incendiary legal malpractice case
that compels legislative or judicial action regarding the legal
malpractice statute of limitations. The Georgia courts have, however,
addressed inequities in the state’s medical malpractice statute of
limitations in a series of cases in the 1980s.13 In one of the most
important cases of that series, Clark v. Singer, the Georgia Supreme
Court criticized statutes of limitation that expire before the plaintiff
11. Antone v. Mirviss, 720 N.W.2d 331, 335 (Minn. 2006) (“[Under] the traditional ‘occurrence’
rule, . . . the statute of limitations begins to run simultaneously with the performance of the negligent or
wrongful act. . . . Most jurisdictions have moved away from the occurrence rule.”) The Minnesota
Supreme Court went on to reject the occurrence rule because of the potential to encourage “wasteful
economic behavior” by attorneys and clients. Id.
12. See generally FIFTY-STATE SURVEY OF LEGAL MALPRACTICE: THE LAW OF LAWYERS’
LIABILITY (Merri A. Baldwin, Scott F. Bertschi & Dylan C. Black eds., 2012) [hereinafter FIFTY-STATE
SURVEY]. This book gives a state-by-state survey of legal malpractice: Alabama, Alaska, Arizona,
California, Colorado, Delaware, Florida, Hawaii, Illinois, Indiana, Iowa, Kentucky, Louisiana,
Maryland, Massachusetts, Michigan, Mississippi, Montana, Nevada, New Hampshire, New Jersey, New
Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South
Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Wisconsin, and Wyoming have all
adopted some form of the discovery rule. Id. The District of Columbia, Idaho, Minnesota, and Missouri
adhere to the damage rule. Id. Connecticut, Nebraska, New York, and South Dakota use the occurrence
rule modified by the continuous representation rule. Id. Arkansas and Georgia cling to the occurrence
rule. Id. Kansas has declined to choose a rule. Id.
The Kansas Supreme Court has recognized four possible theories for determining
when a legal malpractice action accrues and the statute of limitations begins to
run: (1) The occurrence rule . . . (2) The damage rule . . . (3) The discovery
rule . . . (4) The continuous representation rule . . . . In Dearborn Animal Clinic,
the Kansas Supreme Court affirmatively declined to adopt any one of these
theories to the exclusion of the others.
W. Perry Brandt, State of Kansas, in FIFTY-STATE SURVEY, supra, at 178–79; see also Dearborn
Animal Clinic, P.A. v. Wilson, 806 P.2d 997, 1003 (Kan. 1991). For a discussion of the continuing
representation rule, see Part II.B, infra. For a discussion of the damage rule, see Part II.C, infra.
13. See, e.g., Allrid v. Emory Univ., 285 S.E.2d 521, 524 (Ga. 1982); Clark v. Singer, 298 S.E.2d
484, 486 (Ga. 1983); see also C. Frederick Overby, Jason Crawford & Teresa T. Abell, Trial Practice
and Procedure, 50 MERCER L. REV. 359, 369 (1998) [hereinafter Trial Practice and Procedure].
GEORGIA STATE UNIVERSITY LAW REVIEW
even knows of the malpractice.14 That series of cases recognized the
special relationship of trust between doctor and patient, and sought to
strike a balance between the interests of the negligent doctor and the
wronged patient.15 Although legal malpractice does not have
life-ordeath consequences like medical malpractice, the economic and
emotional harm many legal malpractice victims suffer is
lifealtering.16 Clients may not place their physical health and safety in
their attorneys’ hands, but they hire attorneys to advocate for their
rights, redress wrongs against them, and protect their pecuniary
Clients lose time, money, and peace of mind, when they suffer
from attorney negligence because the person they hired to protect
their rights violated them.18 The legal profession is largely
selfregulated, and each state has a bar association charged with creating
and enforcing basic standards of professionalism and competence for
attorneys.19 Unfortunately, attorneys do not always adhere to these
standards.20 In Georgia, the State Bar can address attorney
FORTY-EIGHT STATES ARE PROBABLY NOT WRONG
misconduct through remedial measures up to and including
disbarment.21 The State Bar cannot, however, compensate wronged
clients through monetary damages.22 Thus, some wronged clients
must resort to a lawsuit for legal malpractice where a financial
recovery is necessary to make the client whole again.
The common law in Georgia provides a cause of action for
malpractice against the negligent attorney. To prevail, a plaintiff
must prove: (1) he employed an attorney; (2) the attorney failed to
exercise ordinary care, skill, and diligence; and (3) the attorney’s
negligence proximately caused damage to the client.23 Additionally,
the plaintiff must prove that the underlying case would have been
successful, but for the attorney’s negligence.24 To win a legal
malpractice lawsuit, the plaintiff must win two cases: the primary
case that the attorney should have won, and the secondary negligence
case against the alleged mal-practitioner.25 By setting the time frame
in which the plaintiff must bring a claim or face having it barred, the
statute of limitations is one of the most basic procedural hurdles that
a plaintiff must clear when bringing a legal malpractice suit.26
McFarland, 573 S.E.2d 56, 58 (Ga. 2002) (disbarring an attorney for converting a client’s property); In
re Threlkeld, 539 S.E.2d 823, 824
(disbarring a criminal defense attorney for massaging his
17-year-old client’s genitals during a consultation in a juvenile detention facility); In re Tante, 453
S.E.2d 688, 689–90 (Ga. 1994) (suspending a male attorney for representing a married woman whose
medical records indicated emotional and mental vulnerability and using that information to induce the
client into an affair with him); In re Osborne, 442 S.E.2d 743, 744 (Ga. 1994) (disbarring an attorney for
accepting retainers from three clients then doing no work at all on their cases).
21. GA. RULES OF PROF’L CONDUCT R. 4-102 (2001).
23. Allen v. Lefkoff, Duncan, Grimes & Dermer, P.C., 453 S.E.2d 719, 720 (Ga. 1995).
24. Ross v. Edwards, 560 S.E.2d 343, 344 (Ga. Ct. App. 2002) (“[The plaintiff] must show that, but
for [the attorney’s] negligence, he would have won a plaintiff’s verdict on the nuisance claim and would
have received an award of damages.”). The concept of the “case within the case” is well articulated by
the Wisconsin Supreme Court:
To establish causation and injury in a legal malpractice action, the plaintiff is
often compelled to prove the equivalent of two cases in a single proceeding or
what has been referred to as a “suit within a suit.” This entails establishing that,
“but for the negligence of the attorney, the client would have been successful in
the prosecution or defense of an action.”
Cook v. Cont’l Cas. Co., 509 N.W.2d 100, 104–5 (Wis. Ct. App. 1993) (quoting Glamann v. St. Paul
Fire & Marine Ins., 424 N.W.2d 924, 926 (Wis. 1988)).
25. Cont’l Cas. Co., 509 N.W.2d at 104–5.
26. See Statute of Limitations, BLACK’S LAW DICTIONARY (10th ed. 2014). Statutes of limitations
provide predictability and certainty as to the life-span of a cause of action. Gebhardt v. O’Rourke, 510
N.W.2d 900, 905 (Mich. 1994) (“The statute of limitations affords the opposing party a fair opportunity
GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 33:3
The statute of limitations that Georgia has adopted for legal
malpractice actions is fraught with pitfalls.27 Usually, the negligent
attorney discovers the error or omission before the client does.28
Most attorneys will fulfill the duty imposed by the Rules of
Professional Conduct to inform clients of errors or omissions, but this
does not always happen.29 The attorney may hope to fix the mistake
before the client suffers any harm.30 The attorney also has a better
understanding of the statute of limitations for legal malpractice and
knows that damages do not accrue until the underlying case is finally
adjudicated.31 Attorneys also know that without damages, no claim
exists.32 Thus, attorneys in this position have an incentive to drag
cases out beyond the four-year statute of limitations so that no
to defend, relieves the court system from dealing with ‘stale’ claims, and protects potential defendants
from protracted fear of litigation.”). When the statute of limitations has run, “the plaintiff’s cause of
action [is] dead. It [can]not be revived . . . .” Varricchio v. Johnson, 372 S.E.2d 455, 457 (Ga. Ct. App.
1988). In general, and subject to exceptions discussed in Part II, infra, Georgia courts set the statute of
limitations for medical malpractice actions arising under contractual obligations imposed by incomplete
written and oral agreements at four years, as governed by O.C.G.A. § 9-3-25, and running from the date
of the alleged negligence. Hunter, Maclean, Exley & Dunn, P.C. v. Frame, 507 S.E.2d 411, 412 (Ga.
1998) (“Under normal circumstances, the statute of limitations for legal malpractice actions runs from
the date of the alleged incident of malpractice.”); Duke Galish, L.L.C. v. Arnall Golden Gregory, L.L.P.,
653 S.E.2d 791, 793 (Ga. Ct. App. 2007) (“The cause of action ‘arises immediately upon the wrongful
act having been committed.’” (quoting Jones, Day, Reavis & Pogue v. Am. Envirecycle, Inc., 456
S.E.2d 264, 266 (Ga. Ct. App. 1995))).
27. For a discussion of the negative consequences of the Occurrence Rule, see infra Part II.A.
28. See Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 491 P.2d 421, 428 (Cal. 1971) (“[T]he
client may not recognize the negligence of the professional when he sees it. He cannot be expected to
know the relative medical merits of alternative anesthetics, nor the various legal exceptions to the
hearsay rule. If he must ascertain malpractice at the moment of its incidence, the client must hire a
second professional to observe the work of the first . . . .”).
29. GA. RULES OF PROF’L CONDUCT R. 1.4 (2001) (imposing a duty to “promptly inform the client
of any decision or circumstance with respect to which the client’s informed consent . . . is required” and
to “keep the client reasonably informed about the status of the matter”); GA. RULES OF PROF’L
CONDUCT R. 1.7 (“A lawyer shall not represent or continue to represent a client if there is a significant
risk that the lawyer’s own interests . . . will materially and adversely affect the representation of the
client” unless the client gives informed consent to continued representation.).
30. See DOLORES DORSAINVIL, DOUGLAS R. RICHMOND & JOHN C. BONNIE, MY BAD: CREATING A
CULTURE OF OWNING UP TO LAWYER MISSTEPS AND RESISTING THE TEMPTATION TO BURY
PROFESSIONAL ERROR 8 (2016).
31. Mauldin v. Weinstock, 411 S.E.2d 370, 373 (Ga. Ct. App. 1991).
32. Szurovy v. Olderman, 530 S.E.2d 783, 786 (Ga. Ct. App. 2000) (“Because [plaintiff in a legal
malpractice action] failed to show that she could have negotiated a better agreement or that she would
have obtained better results at trial, she has failed to establish damages and proximate cause.”).
FORTY-EIGHT STATES ARE PROBABLY NOT WRONG 811
damages have actually arisen or at least become apparent until the
cause of action has expired.33
The statute of limitations for legal malpractice claims should not
be so restrictive that good claims are tossed out with the bad ones.34
Nor should it facilitate dishonest, self-protective strategies by
attorneys after they make a mistake.35 Part I of this Note explains
Georgia’s legal malpractice statute of limitations, the occurrence
rule.36 Part II analyzes the potential pitfalls of Georgia’s continued
use of an unaltered occurrence rule,37 and examines the statutes of
limitations that other states have adopted to address those pitfalls.38
Part III proposes a new legal malpractice statute of limitations for
Georgia, designed to better protect clients from attorney malfeasance
without contravening general principles of Georgia jurisprudence.39
Georgia and Arkansas are the last states clinging to an unaltered
occurrence rule for legal malpractice claims.40 In
Arkansas, the statute of limitations runs from the attorney’s negligent
act—in Georgia it runs four years from the date of the negligent act.41
Most states that use the occurrence rule have also adopted the
“continuous representation rule.”42 The continuous representation
GEORGIA STATE UNIVERSITY LAW REVIEW
rule protects clients in an ongoing relationship with the negligent
attorney by tolling the statute of limitations while the attorney and
client are in a “continuous and ongoing relationship.”43 In contrast,
many states use some form of the “discovery rule.”44 Under the
discovery rule, the statute of limitations begins accruing from the
time the client knew or reasonably should have known of the
negligent act.45 Other states toll the statute of limitations until actual
damages accrue.46 Even outside of these rules and their
modifications, some states have adopted different time frames for
statutes of limitation and statutes of repose.47
Theeler, Cogley & Petersen, 575 N.W.2d 457, 460
; Shipman v. Kruck, 593 S.E.2d 319, 324
43. Barnes v. Turner, 606 S.E.2d 849, 852 (Ga. 2004) (both defining and rejecting the rule); cf.
Shipman, 593 S.E.2d at 324–25 (contending that the continuous representation rule takes into account
“the special trust and confidence inherent in the attorney-client relationship,” and determining that,
under the rule, “[t]he date the alleged negligent attorney’s representation of the client terminates is the
relevant date which commences the running of the statute of limitations”).
44. See generally FIFTY-STATE SURVEY, supra note 12. For a discussion of each state’s rule for legal
malpractice statutes of limitations, see supra note 12.
45. Epstein v. Brown, 610 S.E.2d 816, 818 (S.C. 2005). Epstein provides a good example in a
neighboring jurisdiction. The South Carolina Supreme Court explained the policy reasons behind South
Carolina’s three-year statute of limitations that begins to run when the plaintiff knew or should have
known of the negligent act. Id. That decision also expressly rejected the continuous representation rule
in South Carolina. Id.
46. Mental Health Assocs., Inc. v. Carlson, 835 S.W.2d 551, 553 (Mo. Ct. App. 1992). Missouri’s
statute of limitations is five years and does not begin to run until damage is sustained. Id. In this case,
the client did not sustain damage from the attorney’s malpractice until a judgment was rendered against
her and she had to sell her property. Id.; see also Antone v. Mirviss, 720 N.W.2d 331, 335–36 (Minn.
2006) (“Minnesota has taken the middle ground [between the occurrence rule and discovery rule] by
adopting the ‘damage’ rule of accrual, under which the cause of action accrues and the statute of
limitations begins to run when ‘some’ damage has occurred as a result of the alleged
malpractice. . . . [T]he rule that is the most logical and consistent with our precedent is that a cause of
action accrues, and the statute of limitations begins to run, on the occurrence of any compensable
damage, whether specifically identified in the complaint or not.”).
47. See, e.g., Hooper v. Lewis, 477 N.W.2d 114, 115 (Mich. Ct. App. 1991) (“A legal malpractice
claim must be brought within two years of the date the attorney discontinues serving the client or within
six months after the client discovers or should have discovered the claim, whichever is later.”).
Michigan’s legal malpractice statute of limitations appears to be either the continuous representation
rule or the discovery rule. Joseph H. Koffler, Legal Malpractice Statutes of Limitations: A Critical
Analysis of a Burgeoning Crisis, 20 AKRON L. REV. 209, 231 (1986). Alabama’s statute of limitations
also appears to be a hybrid. ALA. CODE. § 6-5-574 (1988). The statute is specific to legal malpractice.
Id. The statute requires the plaintiff to bring suit “within two years after the act or omission or failure
giving rise to the claim,” but qualifies that requirement for “cause[s] of action . . . not discovered and
could not reasonably have been discovered within such period,” granting the discovery rule in those
cases. Id. Finally, the statute imposes an absolute four-year statute of repose. Id.
FORTY-EIGHT STATES ARE PROBABLY NOT WRONG 813
The elements of legal malpractice in Georgia are well-settled.48
Before considering the merits of each element of the claim, the
plaintiff must find an expert willing to testify as to how the defendant
attorney fell below the standard of care.49 For over a century, Georgia
observed an unqualified, unaltered occurrence rule with a four-year
statute of limitations accruing from the time of the negligent act.50
Georgia treats legal malpractice as an action arising from a
contract—albeit an incomplete contract—as opposed to other states,
which treat it as an action in tort.51
One dispute in particular, Newell Recycling v. Jordan Jones &
Goulding, arising from a contract between an engineering firm and a
recycling company, illustrates the difficulties in determining the
applicable statute of limitations in professional liability actions.52
Newell Recycling, Inc. (Newell) hired Jordan Jones & Goulding, Inc.
(JJ&G) to provide professional engineering assistance for
48. Allen v. Lefkoff, Duncan, Grimes & Dermer, P.C., 453 S.E.2d 719, 720 (Ga. 1995).
49. O.C.G.A. § 9-11-9.1 (2007). The plaintiff has to “file with the complaint an affidavit of an expert
competent to testify, which affidavit shall set forth specifically at least one negligent act or omission
claimed to exist and the factual basis for each claim.” Id. There is, however, an exception for “clear and
palpable” negligence that a jury does not need an expert to understand. Hopkinson v. Labovitz, 499
S.E.2d 338, 339 (Ga. Ct. App. 1998). The stated policy behind the affidavit requirement is to reduce the
number of frivolous lawsuits. Hous. Auth. of Savannah v. Greene, 383 S.E.2d 867, 870 (Ga. 1989). In
2010, legal malpractice plaintiffs challenged the constitutionality of § 9-11-9.1, contending that it
“prohibits indigent plaintiffs from pursuing their actions for professional negligence due to the costs of
procuring an expert affidavit.” Walker v. Cromartie, 696 S.E.2d 654, 656 (Ga. 2010). The Georgia
Supreme Court rejected the plaintiffs’ constitutional argument, reasoning that nothing in § 9-11-9.1
requires defendants to pay for affidavits. Id. The cost of the affidavit is imposed by private parties, not
the government. Id. As the due process clauses of the federal and state constitutions control the state’s
actions, not individuals’ actions, the Georgia Supreme Court upheld the constitutionality of § 9-11-9.1.
50. See Hamilton v. Powell, Goldstein, Frazer & Murphy, 306 S.E.2d 340, 343 (Ga. Ct. App. 1983)
(citing Patterson v. Augusta & Savannah R. Co., 21 S.E. 283 (Ga. 1894)).
51. Royal v. Harrington, 390 S.E.2d 668, 668 (Ga. Ct. App. 1990) (“It has long been the law in this
state that a cause of action for legal malpractice, alleging negligence or unskillfulness, sounds in
contract (agency), and, in the case of an oral agreement, is subject to the four-year statute of
limitation . . . .” (quoting Ballard v. Frey, 346 S.E.2d 893, 896 (Ga. Ct. App. 1984))). Other states,
including Texas, have declared legal malpractice a tort and treated it accordingly. Willis v. Maverick,
760 S.W.2d 642, 644 (Tex. 1988).
52. Newell Recycling of Atlanta, Inc. v. Jordan Jones & Goulding, Inc., 703 S.E.2d 323 (Ga. 2010);
see also J. RANDOLPH EVANS & SHERI KLEVENS, GEORGIA LEGAL MALPRACTICE LAW § 2-4:2.2 (2017)
(noting that the holdings that “written documents like an engagement letter or title opinion do not
constitute written contracts for statute of limitations purposes . . . are now unsettled in light of the
Supreme Court of Georgia’s decision in Newell Recycling, Inc. v. Jordan Jones and Goulding, Inc.”).
GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 33:3
memorialized their agreement with a “scope of work.”54 In
2000, the concrete foundation that Newell paid JJ&G to design
started cracking, and in August 2004, Newell sued JJ&G for breach
of contract and professional malpractice.55 Newell Recycling went to
the Superior Court twice, the Court of Appeals three times, and the
Supreme Court once.56 The alleged professional malpractice occurred
in 2000, and the statute of limitations ran in either 2004 or 2006.57
or 9-3-25 applied until 2012.58 The case purportedly established a
six-year statute of limitations in professional liability actions if the
parties reduced their complete agreement to writing.59 This holding is
unapplied and untested in the context of legal malpractice.60
Newell Recycling, the Court of Appeals held that an
engagement letter was too indefinite to constitute a written contract,
disqualifying the claim
section 9-3-24’s six-year statute of
limitations.61 Medical malpractice is the only form of professional
liability addressed by the Georgia legislature, in which the legislature
and the courts have combined to implement a discovery rule.62 The
lack of a dedicated statute, combined with murky case law, virtually
FORTY-EIGHT STATES ARE PROBABLY NOT WRONG 815
guarantee a court-adjudicated inquisition at the outset of most
professional liability actions.
Effective statutes of limitations “relieve the court system from
dealing with ‘stale’ claims, and protect potential defendants from
protracted fear of litigation.”63 Without a clearly defined statute of
limitations, a cause of action has an unlimited life span.64 Effective
statutes of limitations should protect the interests of all parties
involved, without favoring one party over the other.65 Statutes of
limitations can be particularly problematic in this regard because they
dispose of a claim based on time, instead of the merits of the case.66
Even meritorious claims can fall on the statute of limitations without
ever getting a day in court.67 Safeguarding against this potential
problem is especially important in the context of legal malpractice.68
Clients begin disputes at a distinct disadvantage because of attorneys’
superior knowledge of the law.69 Many states attempt to even the
playing field in a number of ways.70
Aside from Georgia and Arkansas, every state attempts to mitigate
the inherent inequality of the occurrence rule by modifying their legal
Most states adopted the
discovery rule for legal malpractice, and in those states the statute of
GEORGIA STATE UNIVERSITY LAW REVIEW
limitations does not begin to run until the plaintiff-client knew or
should have known of the attorney’s negligence.72 Other states have
also moved to the damage rule, which does not start the statute of
limitations until the plaintiff-client suffers actual damage.73 Other
states have modified these rules with the continuous representation
rule, which tolls the statute of limitations while the prospective
plaintiff and defendant remain in an attorney-client relationship.74
If the states are the laboratories of democracy75 in the ongoing
experiment on legal malpractice, then Georgia and Arkansas are the
control group. Georgia often takes the pragmatic approach of letting
other states experiment with new legal concepts before adopting
them.76 In the case of legal malpractice statutes of limitations,
fortyeight states have experimented
different approaches for
decades.77 Their experiences aide in evaluating the relative merits of
each approach. Aside from the two relatively minor exceptions
discussed in Part IIA, infra, Georgia still rigorously adheres to the
occurrence rule.78 As such, Georgia serves as an excellent base to
compare and contrast the benefits and pitfalls of other states’ statutes
A. Georgia’s Application of the Occurrence Rule
Georgia’s unaltered occurrence rule strongly favors defendants,
especially unscrupulous defendants.80 Essentially, the attorney has a
FORTY-EIGHT STATES ARE PROBABLY NOT WRONG
“head start” in crafting a statute of limitations defense.81 Attorneys
are experts on the law and know—or at least should know—when
their representation fell below the standard of care. Attorneys who
know that they committed a negligent act or omission have a duty to
disclose that fact to a client.82 If they do not make that disclosure,
many clients remain blissfully unaware of the attorney’s negligent act
until it is too late. That stark realization often does not come until a
client loses a case.83 If a case runs for four years past the attorney’s
negligent act, the client is highly unlikely to discover the attorney’s
negligence until the statute of limitations has run.
Under the framework put forth in Newell Recycling, most fee
constitute a complete
precluding a six-year statute of limitations.84 Defendant-attorneys can
circumvent section 9-3-96, the statute that tolls the statute
limitations for fraud, by
incriminating to their—usually former—clients.85 The attorney may
also take any number of measures that could be interpreted as normal
representation of the client but are really intended to protect the
attorney.86 These actions are usually justifiable should the client ever
GEORGIA STATE UNIVERSITY LAW REVIEW
try to toll the statute for fraud.87 When the time comes to answer
questions about why it took the client so long to find out about the
alleged negligent act, an attorney merely has to “play dumb” so that
it appears simple negligence, not fraud, was the reason the client
never found out about the malpractice.88 Georgia’s narrow allowance
to toll the statute of limitations for fraud presents unscrupulous
attorneys ample opportunity to escape liability for negligence.89
Tolling the statute of limitations for fraud is one of two small
concessions that Georgia has afforded to legal malpractice
plaintiffs.90 “[T]he fraud which will relieve the bar of the statute of
limitation must be of that character which involves moral turpitude,
and must have the effect of debarring and deterring the plaintiff from
his action.”91 Fraud of the nature and magnitude required by Georgia
courts to toll the statute is very difficult to prove, especially when the
proof of fraud lies in the hands of an attorney fighting to protect his
career and professional reputation.92 Additionally, when interpreting
O.C.G.A. § 9-3-96, courts have unequivocally held that gross
negligence that leads to passive concealment of malpractice will not
toll the statute of limitations.93
FORTY-EIGHT STATES ARE PROBABLY NOT WRONG 819
Georgia’s second concession to legal malpractice plaintiffs is the
so-called “springing statute of limitations.”94 In Barnes v. Turner, the
defendant attorney failed to inform a client that the U.C.C. liens the
attorney filed on his behalf needed to be renewed in five years.95 That
failure occurred in 1996, but the plaintiff did not discover the
attorney’s failure until 2002—six years after the negligent act.96 The
court, aware of the fact that the lien had to be renewed in five years
and that the legal malpractice statute of limitations is four years,
recognized the inherent incompatibility
between the statute
limitations and the cause of action.97 Rather than find that the
negligent act took place in 1996 with the attorney’s failure to inform
the client of the renewal requirement, the Court held that the attorney
had an ongoing duty to “safeguard [the client’s] security interest.”98
After Barnes, the springing statute of limitations applies
attorneys assume an obligation to safeguard a client’s long-term
interests, even after the four-year statute of limitations has run.99
Although the Court carved out a small accommodation to legal
malpractice plaintiffs in
Barnes, it also took the opportunity to
expressly reject the continuous representation rule.100
GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 33:3
B. The Continuous Representation Rule
The continuous representation rule tolls the statute of limitations
while the prospective plaintiff and defendant remain in an attorney–
client relationship.101 The Georgia Supreme Court flatly rejected the
continuous representation rule in Hunter, Maclean, Exley & Dunn,
P.C. v. Frame and Barnes v. Turner.102 In Hunter, the Court
expressed concern that tolling the statute of limitations while the
attorney and client are in an ongoing relationship would give the
client the ability to toll the statute indefinitely.103 The Court reasoned
that under such a rule, a client could continue the confidential
relationship indefinitely, “even if the plaintiff was fully aware of the
facts underlying his allegation of malpractice, but merely slept on his
right to bring suit.”104 By contrast, the defendant attorney in such a
situation could only stop the statute from tolling by severing the
confidential relationship and exposing himself to a malpractice
Georgia courts are not alone in their rejection of the continuous
representation rule, although they are more vociferous than other
states. In Florida, some appellate courts adopted the continuous
representation rule until the Florida Supreme Court expressly rejected
it in 2009.106 Florida uses the discovery rule for professional
malpractice and enumerates instances that toll the statute of
limitations.107 The Florida Supreme Court held that the omission of
of the continuous treatment rule from medical malpractice. Hipple v. McFadden, 255 P.3d 730, 737
(Wash. Ct. App. 2011). In Preer v. Mims, the South Carolina rejected the continuous treatment doctrine.
Preer v. Mims, 476 S.E.2d 472, 473–74 (S.C. 1996). Because of the similarity between the two rules,
the South Carolina Supreme Court declined to adopt the continuous representation rule. Epstein, 610
S.E.2d at 818–19.
101. Barnes, 606 S.E.2d at 852.
102. Hunter, Maclean, Exley & Dunn v. Frame, 507 S.E.2d 411, 415 (Ga. 1998); Barnes, 606 S.E.2d
103. Hunter, 507 S.E.2d at 415.
106. Larson & Larson, P.A. v. TSE Industries, Inc., 22 So. 3d 36, 46 (Fla. 2009).
107. FLA. STAT. § 95.11 (2016). The relevant code provision states:
An action for professional malpractice, other than medical malpractice, whether
founded on contract or tort; provided that the period of limitations shall run [for
two years] from the time the cause of action is discovered or should have been
discovered with the exercise of due diligence. However, the limitation of actions
FORTY-EIGHT STATES ARE PROBABLY NOT WRONG
an ongoing attorney–client relationship from the enumerated acts was
sufficient evidence of the legislature’s intent to adopt the discovery
rule without the continuous representation rule and declined to adopt
the rule in the absence of statutory authority.108 South Carolina,
another neighboring state that uses the discovery rule, has also
declined to adopt the continuous representation rule in the absence of
Other states have taken a contrary position on the continuous
representation rule. Indiana, for example, adopted the continuous
representation rule primarily to “avoid disrupting the attorney–client
relationship.”110 Indiana and
many other states are concerned that
under the occurrence rule, a client may be forced to terminate an
attorney’s representation during ongoing litigation to sue the attorney
for malpractice, disrupting the underlying lawsuit to create a new
one.111 In New York, the statute of limitations is three years, running
from the date of the negligent act.112 The New York Court of Appeals
found the continuous representation rule appropriate in light of the
special relationship of trust and confidence between attorney and
GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 33:3
Changing attorneys during the course of ongoing litigation can be
fatal to both the underlying dispute and the subsequent legal
malpractice action.114 Under the occurrence rule, clients may be
forced into a choice of suing their attorney before the underlying suit
has ended or filing suit against their attorney during the course of
ongoing litigation to preserve the claim before the statute of
limitations expires.115 Should the client choose to file the malpractice
claim during representation, the client will likely have to find a new
attorney for the remainder of the underlying dispute.116 In the
subsequent legal malpractice action, the negligent attorney’s defense
counsel can attack causation by contending that the client’s rash
decision to fire the defendant attorney, not the defendant attorney’s
negligence, was the proximate cause of damage in the underlying
Some states have argued that the continuous representation rule is
good for both attorney and client.118 Unlike the occurrence rule, the
continuous representation rule does not force a client in an ongoing
confidential relationship with an attorney to file suit quickly in fear
of the statute of limitations expiring.119 Under this theory, tolling the
statute of limitations during an ongoing confidential relationship buys
the attorney time to correct the problem that led to the client’s
dissatisfaction before the client is compelled to file suit to preserve
Court held that the attorney–client relationship requires the same degree of trust and confidence as the
doctor–patient relationship. Id. The Ohio Supreme Court reasoned that in light of the similar level of
trust and confidence, it was appropriate to apply the continuous treatment rule from medical malpractice
to legal malpractice actions as the continuing treatment rule. Id.
114. Glamm, 439 N.E.2d at 393 (“Neither is a person expected to jeopardize his pending case or his
relationship with the attorney handling that case during the period that the attorney continues to
represent the person.”).
117. See Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, L.L.C., 795 A.2d 572, 580 (Conn.
App. Ct. 2002) (discussing the policy reasons underpinning the continuous representation rule); see also
Ronald E. Mallen, Limitations and the Need for “Damages” in Legal Malpractice Actions, 60 DEF.
COUNS. J. 234, 247 (1993).
118. Janicki Logging & Constr. Co. v. Schwabe, Williamson & Wyatt, P.C., 37 P.3d 309, 314 (Wash.
Ct. App. 2001).
119. Epstein v. Brown, 610 S.E.2d 816, 818–19 (S.C. 2005) (discussing the policy reasons behind
rejection of the continuous representation rule).
FORTY-EIGHT STATES ARE PROBABLY NOT WRONG 823
the statute of limitations.120 In Janicki Logging v. Schwabe, the
Washington Court of Appeals adopted the continuous representation
rule using this rationale in a state where “the decision of when to toll
the statute of limitations [is] a ‘matter of judicial policy.’”121
Another persuasive argument for the continuous representation
rule is that it eliminates an element of subjectivity from the
determination of when the statute of limitations begins to accrue.122
Parties are either in an attorney–client relationship or they are not.123
The continuous representation rule eliminates the inherent harshness
of the occurrence rule but does not require the same sort of analysis
of the attendant facts required under either the damage rule or the
discovery rule.124 Regardless, Hunter, Maclean, Exley & Dunn, P.C.
v. Frame strongly suggests that the Georgia Supreme Court will not
unilaterally change a statute of limitations, and any action would
need to come through the General Assembly.125
C. The Damage Rule
Damages are usually the last element of a legal malpractice claim
materialize.126 The damage rule recognizes this fundamental
proposition and pegs the accrual of the statute of limitations to the
Unlike the discovery rule, the existence of damage, not the plaintiff’s knowledge of damage, starts
GEORGIA STATE UNIVERSITY LAW REVIEW
the accrual of the statute of limitations.128 Litigation regarding
statutes of limitations under the damage rule generally centers around
much damage suffices to begin accrual of the statute of
Some states, like
“compensable damage” before the statute begins accruing.130
Idaho uses the damage rule for legal malpractice actions, despite
using a statute of limitations that looks like the occurrence rule.131
The courts in Idaho have adopted a somewhat flexible definition of
requirement, Idaho courts have allowed the statute of limitations to
begin running for damages other than an adverse judgment in the
underlying case.133 Idaho’s broad interpretation of damages allows
the courts some flexibility in determining when damages began to
accrue, which in turn gives them flexibility to make rulings on the
statute of limitations that make sense in each individual case.134
It is hard to argue against the simplicity of the damage rule. The
rule keeps with generally accepted principles of tort law, namely the
principle that there can be no cause of action without damages.135
Even though the cause of action can hardly be described as anything
other than negligence, many jurisdictions cling to the notion that
professional liability is either a breach of contract or a strange hybrid
of negligence and breach of contract.136 Georgia is one of those
128. Jay A. Summerville, State of Missouri, in FIFTY-STATE SURVEY, supra note 12, at 276
(discussing Missouri’s application of the damage rule).
129. Fairway Dev. Co. v. Petersen, Moss, Olsen, Meacham & Carr, 865 P.2d 957, 959–60 (Idaho
1993) (providing a history of how Idaho courts have interpreted “some damage” since adaptation of the
130. Antone, 720 N.W.2d at 336.
131. IDAHO CODE § 5-219(4) (2015). The Idaho Supreme Court explained the statute of limitations as
follows: “Idaho law provides that the statute of limitations on a professional malpractice claim will
expire two years following the occurrence, act or omission complained of, barring fraudulent or
knowing concealment of the injury, and will not be extended due to any continuing consequences,
damages, or continuing professional relationship.” Fairway Dev. Co., 865 P.2d at 959.
132. Keely E. Duke, State of Idaho, in FIFTY-STATE SURVEY, supra note 12, at 131.
133. McColm-Traska v. Baker, 88 P.3d 767, 772 (Idaho 2004) (holding that Idaho does not require an
adverse ruling prior to pursuing a professional liability action).
134. Fairway Dev. Co., 865 P.2d at 959–60 (providing a history of how Idaho courts have interpreted
“some damage” since adaptation of the damage rule and illustrate how Idaho judges have the leeway to
make the statute of limitations accrue at a point that is appropriate in each individual case).
135. WILLIAM J. PROSSER, HANDBOOK OF THE LAW OF TORTS § 30 (4th ed. 1971).
136. MEISELMAN, supra note 123, at 18–19.
FORTY-EIGHT STATES ARE PROBABLY NOT WRONG 825
jurisdictions, considering professional liability a breach of an
incomplete written or oral agreement.137
In Georgia, nominal damages are available for legal malpractice.138
Although “nominal damages” is a relative term, it may be no more
than a “trifling sum awarded where a breach of duty or an infraction
of the plaintiff’s right is shown, but no serious loss is proved to have
been sustained.”139 Given this definition of nominal damages,
defendants could and likely would argue that plaintiffs suffered not
even a “trifling sum” of damages at the time the negligent act
occurred.140 If the General Assembly or the courts were to adopt the
damage rule without readdressing the availability of nominal
damages in legal malpractice actions, it would be nothing more than
a repackaged occurrence rule.141
D. The Discovery Rule
The discovery rule traces its lineage to principles first established
to address medical malpractice.142 Most jurisdictions, including
137. Jones, Day, Reavis & Pogue v. Am. Envirecycle, Inc., 456 S.E.2d 264, 266 (Ga. Ct. App. 1995)
(applying section 9-3-25 of Georgia’s code, the statute of limitations for breach of an incomplete written
or oral agreement).
138. Jankowski v. Taylor, Bishop & Lee, 273 S.E.2d 16, 18 (Ga. 1980); see also Kirby v. Chester,
331 S.E.2d 915, 917 (Ga. Ct. App. 1985). “Nominal damages have been held not to be recoverable
where the theory of liability sounds in tort rather than contract. The rationale is that an attorney should
be liable only for causing actual harm.” RONALD E. MALLEN & ALLISON MARTIN RHODES, 3 LEGAL
MALPRACtice § 21:5 (2016).
139. Sellers v. Mann, 39 S.E. 11, 11 (Ga. 1901) (quoting 2 BOUVIER’S LAW DICTIONARY 504).
140. O.C.G.A. § 51-12-4. “If an injury is small or the mitigating circumstances are strong, nominal
damages only are given.” Id. “Damages compensate from injury and may be inferred from invasion of a
property right. Where no actual damage flows from the injury, nominal damages may be awarded. Yet,
some injury—even if small or nominal—is necessary.” Conner v. Hart, 555 S.E.2d 783, 786
(discussing when nominal damages are appropriate). Nominal damages may be awarded
even for minor injuries, such as those that usually happen at the time of the defendant attorney’s
negligent act. Id.
141. MALLEN & RHODES, supra note 138, at § 21:5. According to Mallen and Rhodes:
The concept of nominal damages, however, does serve a necessary function in those jurisdictions that
purport to follow the rule that a statute of limitations commences to run when the negligence occurs. If
suit must be brought within a specified period from the wrongful act or omission, and before any actual
damages occur, nominal damages are indispensable to a cause of action. As the use of the occurrence
rule declines, so should the need to sue for nominal damages. Both are anachronisms in legal
malpractice litigation. Ironically, very few decisions discussing the right to recover nominal damages
have affirmed or awarded such a judgment.
142. Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 491 P.2d 421, 426 (Cal. 1971).
GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 33:3
Georgia, believe that it is inherently unfair to allow the statute of
limitations to begin accruing before the plaintiff-patient even knows
that he should be filing a lawsuit.143 In recognition of that potential
for injustice, thirty-eight states do not begin to run the statute of
limitations until the plaintiff knows or should have known with due
diligence the existence of the cause of action.144
California was an early adopter of the discovery rule.145 California
adhered to the occurrence rule until 1970.146 In 1971, the California
Supreme Court found the policy behind the discovery rule
compelling enough to adopt it outright.147 Like the continuous
representation rule, the discovery rule recognizes the special trust and
confidence that the client places in the attorney.148 The California
Supreme Court found it problematic that attorneys were shielded
from liability that applied to other professions where the relationship
between professional and client is not as interdependent.149 It also
FORTY-EIGHT STATES ARE PROBABLY NOT WRONG
recognized the occurrence rule’s potential abuse by
[W]hen an attorney raises the statute of limitations to
occlude a client’s action before that client has had a
reasonable opportunity to bring suit, the resulting ban of the
action not only starkly works an injustice upon the client
but partially impugns the very integrity of the legal
All of Georgia’s neighbors have adopted some variation of the
discovery rule.151 Like most states, South Carolina and California
chose to adopt the discovery rule for similar reasons.152 South
Carolina did, however, explicitly state that “reasonable diligence”
requires “some promptness” by the plaintiff after discovery of the
cause of action.153 Additionally, discovery triggers accrual of the
statute.154 This does not require a “full blown theory of recovery” but
must be more than a mere conversation with the attorney.155
Tennessee’s discovery rule evaluation places weight on the
significance of damage to the plaintiff.156 Like South Carolina,
Tennessee does not require the plaintiff to fully develop a legal
theory to satisfy the knowledge requirement of the discovery rule; the
state requires only that he knows the existence of the cause of action
Alabama may be one of the few states more judicially conservative
than Georgia.158 It is one of the four remaining states that still uses
150. Id. at 431.
151. ALA. CODE § 6-5-574 (1975); FLA. STAT. § 95.11(4)(a) (2016); N.C. GEN STAT. § 1-15(C)
(2015); S.C. CODE ANN. §§ 15-3-530, -535 (2016); John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d
528, 532 (Tenn. 1998).
152. Santee Portland Cement Co. v. Daniel Int’l Corp., 384 S.E.2d 693, 694–95 (S.C. 1989)
(discussing the policy reasons behind South Carolina’s adoption of the discovery rule for professional
153. Epstein v. Brown, 610 S.E.2d 816, 818 (S.C. 2005).
156. John Kohl & Co., 977 S.W.2d at 532.
157. Id. at 533.
158. See Political Outlook of State Supreme Court Justices, BALLOTPEDIA,
GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 33:3
the archaic and harsh rule of contributory negligence as a complete
bar to recovery in negligence actions.159 For all intents and purposes,
Alabama’s basic legal malpractice statute of limitations is a fairly
damage rule.160 In
Alabama, a legal
malpractice suit must be filed within two years accrual of the cause
of action, with a four-year statute of repose.161 Even under this
restrictive regime, the Alabama legislature does allow a plaintiff to
bring an action “within six months of the date of such discovery or
the date of discovery of facts which would reasonably lead to such
discovery.”162 Alabama’s discovery rule is draconian and limited, but
it still protects a wronged plaintiff better than the occurrence rule.163
The wronged client must move quickly, but potentially meritorious
claims are not dead merely because the statute of limitations ran
before the client had any chance to find out about the cause of
Carolina, another one of
Georgia’s neighbors that has
chosen to remain in the
minority of states that still adhere to
contributory negligence as an absolute bar to recovery, has taken a
less draconian approach to legal malpractice.165 North Carolina has a
FORTY-EIGHT STATES ARE PROBABLY NOT WRONG 829
three-year statute of limitations and a four-year statute of repose for
legal malpractice.166 North Carolina has statutorily modified its basic
rule, adding the discovery rule and giving plaintiffs one year after
discovery of the cause of action to file suit.167
Delaware’s tangled mess of case law regarding the discovery rule
illustrates what happens when the courts and the legislature do not
speak with one voice on something as basic and important as a statute
of limitations.168 The Delaware legislature has imposed a three-year
statute of limitations on legal malpractice.169 Generally, Delaware
courts have rigidly adhered to the statute of limitations.170 At times,
however, Delaware courts used the discovery rule to toll the statute
of limitations.171 This sort of inconsistency defeats one of the primary
purposes of a statute of limitations: predictability.172
Hawaii, New Jersey, and Wisconsin all use the discovery rule and
have a six-year statute of limitations.173 A lengthy statute of
limitations would violate two important policy drivers of the statute
of limitations in Georgia.174 A statute of limitations that does not
begin to run until the plaintiff discovers the cause of action may
extend well past six years after the occurrence of the negligent act.175
The extreme gap between the negligent act and litigation greatly
increases the likelihood that key evidence will not be available by the
time the plaintiff actually files suit.176 Additionally, the cause of
see also Molly L. McIntosh, State of North Carolina, in FIFTY STATE SURVEY, supra note 12, at 365–
166. Molly L. McIntosh, State of North Carolina, in FIFTY STATE SURVEY, supra note 12, at 365–66.
167. Id. (citing N.C. GEN. STAT. § 1-15(c)).
168. Tanya E. Pino, State of Delaware, in FIFTY STATE SURVEY, supra note 12, at 81–83.
172. See supra note 26 and accompanying text.
173. N.J. STAT. ANN. § 2A:14-1 (1963); WIS. STAT. ANN. § 893.53 (2006); Blair v. Ing, 21 P.3d 452,
472 n.17 (Haw. 2001).
174. Clark v. Singer, 298 S.E.2d 484, 486 (Ga. 1983).
175. Id. (“Statutes of limitation . . . are designed to promote justice by preventing surprises through
the revival of claims that have been allowed to slumber until evidence has been lost, memories have
faded, and witnesses have disappeared.”).
GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 33:3
action needs an expiration date so the negligent attorney does not live
in the shadow of potentially pending litigation.177
Some states have adopted the discovery rule through judicial
action and others have statutorily adopted it.178 The Supreme Court
of Georgia rejects the notion that it can adopt a statute of limitations
in the absence of legislative action.179 As such, they have never
addressed the discovery rule in the context of professional liability.180
Other states have criticized the discovery rule as providing
“openended liability.”181 Some states do not believe that controls like those
imposed by Georgia’s neighbors go far enough to “defend stale
claims, to preserve evidence, and to treat all plaintiffs equally.”182
Some courts prefer the more objective standard of the damage rule to
the discovery rule’s evaluation of the plaintiff’s knowledge.183
Thirty-eight states have rejected this rationale and adopted some
variation of the discovery rule.184
The facts and experiences of other states strongly suggest that the
discovery rule is the most effective statute of limitations for legal
FORTY-EIGHT STATES ARE PROBABLY NOT WRONG
malpractice. The discovery rule protects clients by tolling the statute
of limitations until the plaintiff discovers or reasonably should have
discovered the attorney’s negligence.185 It eliminates the occurrence
rule’s “head start” for negligent attorneys to craft a statute of
limitations defense by not accruing the statute of limitations until
both the attorney and the client are aware of the cause of action.186 It
protects clients in all cases, not just the limited set of facts covered by
the continuous representation rule.187 Unlike the damage rule, there is
no potential for the discovery rule to be eviscerated by Georgia’s
allowance of nominal damages for legal malpractice.188 A discovery
rule statute of limitations that balances the interests of all interested
parties—the plaintiff-client, defendant-attorney, the legal profession,
and the legislature—may look something like this:
a) An action for professional negligence against an
attorney shall be brought within two years after the
date on which the plaintiff discovered, or should
have discovered, through the exercise of due
diligence, all of the elements of the cause of action;
b) When an attorney undertakes to safeguard a client’s
security interest for longer than five years, or when
the claim of negligence is based on wills or trusts
where all of the elements of the cause of action
could not reasonably be discovered within five
years of the date on which the negligent act
occurred, the action shall be brought within one
year after the negligent or wrongful act or omission
c) Except under the conditions outlined in subsection
(b) and notwithstanding subsection (a), in no event
may an action for professional negligence against
an attorney be brought more than five years after
185. Epstein v. Brown, 610 S.E.2d 816, 818–21 (S.C. 2005).
186. Id. at 415.
187. See supra Part II.B.
188. See supra Part II.C.
GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 33:3
the date on which the negligent or wrongful act or
The discovery rule is not a one-size-fits-all rule. For example,
states with as diverse priorities and political motivations as Utah and
California have adopted the discovery rule for legal malpractice.
Each of the thirty-eight states that have adopted some form of the
discovery rule have adopted a version reflecting that state’s priorities
and interests.189 Even states such as Texas, a state with an active tort
reform movement, recognize the sense in adopting the discovery rule
for legal malpractice.190 Georgia’s neighbors all have robust and
active tort reform movements, yet they all have adopted some form
of the discovery rule.191 Thus, the adoption of the discovery rule for
legal malpractice in Georgia would not be a novel development,
provided that its version of the discovery rule reflects the state’s
A. Practical Considerations for a Discovery Rule in Georgia
For Georgia to move past the occurrence rule, any version of the
discovery rule must match Georgia’s political and legislative
priorities. Neither the Georgia courts nor the General Assembly have
engaged in a serious discussion about adopting the discovery rule for
legal malpractice, but it is not impossible to infer some important
guiding principles. Many of the principles and considerations that led
Georgia courts to shape the medical malpractice statute of limitations
189. See generally FIFTY-STATE SURVEY, supra note 12, at 495–96.
190. McClung v. Johnson, 620 S.W.2d 644, 646 (Tex. Civ. App. 1981); see also Tort Reform in
Texas: “Rove’s Genius at Work,” PBS, http://www.pbs.org/wgbh/pages/frontline/shows/architect/
texas/tort.html (Apr. 12, 2005). For a discussion of Texas’s adaptation of the discovery rule for legal
malpractice actions, see supra notes 1–9 and accompanying text.
191. Dan Berexa, Three Years of Tennessee Tort Reform–The Essentials, TENN. LAW BLOG (Aug. 5,
http://www.tennlawblog.com/dan_berexas_tennessee_law/2013/08/recap-of-three-years-oftennessee-tort-reform.html; Brian A. Comer, South Carolina Tort Reform Statewide Becomes Effective
January 1, 2012, S.C. PROD. LIAB. LAW (Feb. 9, 2012, 8:59 AM), http://scproductsliabilitylaw.
blogspot.com/2012/02/south-carolinas-tort-reform-statute.html; Carin Dorman Brock & George A.
McMullin, Tort Reform Legislation in Alabama, BUTLER WEIHMULLER KATZ CRAIG (Apr. 1, 2012),
http://www.butler.legal/tort-reform-legislation-in-alabama; North Carolina Tort Reform and How it
Affects You, WILSON LAW (Jan. 17, 2014),
FORTY-EIGHT STATES ARE PROBABLY NOT WRONG 833
into a fair, effective statute are no less applicable for legal
In Clark v. Singer, the Supreme Court of Georgia analyzed the
constitutionality of medical malpractice that results in death.192 In
that case, the plaintiff’s husband died of carcinoma of the lung on
June 11, 1979, and the plaintiff filed suit on June 8, 1981.193 The
plaintiff contended that the defendant doctors would have discovered
the condition prior to June 3, 1978, had they exercised reasonable
care.194 In 1979, medical malpractice actions had a two-year statute
of limitations running from the date of the negligent act.195 The court
held that “[t]o impose a limitation period which may be exhausted
before the cause of action accrues (i.e., before the patient dies),
arbitrarily distinguishes between wrongful death, medical
malpractice plaintiffs” and that the statute of limitations did not begin
to run until the plaintiff’s husband actually died.196
Clark v. Singer and subsequent cases regarding the
constitutionality of medical malpractice statutes of limitations are
illustrative of Georgia’s priorities. The Clark Court acknowledged
that statutes of limitations are a means of guarding against stale
claims and the prospect of endless litigation.197 However, the Court
criticized the prospect of a statute of limitations that allowed a claim
to expire before it had fully formed to the point of being a cognizable
claim.198 The ultimate result of Clark v. Singer and its progeny was
that, for medical malpractice cases, using the statute of limitations
runs afoul of equal protection when barring a claim before the
plaintiff discovers the injury.199
The Georgia courts and legislature have already determined that a
two-year statute of limitations strikes an optimum balance between
all of the different interests involved in a statute of limitations for
192. Clark v. Singer, 298 S.E.2d 484, 485 (1983).
196. Id. at 486.
198. Clark, 298 S.E.2d at 486.
199. Trial Practice and Procedure, supra note 13, at 369.
GEORGIA STATE UNIVERSITY LAW REVIEW
medical malpractice actions.200 A two-year statute of limitations that
runs from the date that the plaintiff discovers, or reasonably should
have discovered all elements of the cause of action, including
compensable damages, provides attorneys and clients with the same
playing field that doctors and patients have for medical malpractice
actions in Georgia.201 For legal malpractice, most states that use the
discovery rule have either a two- or three-year statute of
limitations.202 Georgia’s policy determination regarding medical
malpractice falls in line with most states’ policy determinations for
Statutes of repose are less common in states that use the discovery
rule for legal malpractice, but a statute of repose is appropriate in
Georgia. The General Assembly is not inclined to pass laws that
make it easier to bring a lawsuit in the state.203 A five-year statute of
repose forecloses the prospect of endless litigation in the majority of
cases.204 The statute of repose may be problematic in some legal
malpractice cases because the cause of action may not be
discoverable for many years after a statute of repose has run.205
Georgia has already addressed that problem judicially by
implementing the springing statute of limitations.206 It addressed a
similarly problematic subset of medical malpractice—foreign objects
left in the body after a medical procedure—by statutorily creating a
special exception for such cases.207 O.C.G.A. § 9-3-72 allows
plaintiffs to bring an action within one year after discovery of the
negligent act for foreign objects left in the body.208 Thus, statutorily
200. Clark, 298 S.E.2d at 486.
201. O.C.G.A. § 9-3-71 (1976).
202. See FIFTY-STATE SURVEY, supra note 12, at 81, 130, 179.
203. See, e.g., Walter C. Jones, Pennington Says Tort Reform Will Help Him Cut Spending,
COLUMBIA CTY. NEWS-TIMES (Jan. 8, 2014, 12:10 AM),
http://newstimes.augusta.com/news/2014-0108/pennington-says-tort-reform-will-help-him-cut-spending. In the last gubernatorial primary election,
Republican challenger David Pennington attacked Nathan Deal for “cozying up” with plaintiff’s
lawyers, and claiming that his further tort reform proposals would save the state and its businesses
204. Clark, 298 S.E.2d at 486.
205. See supra notes 94–99 and accompanying text.
206. See supra notes 94–99 and accompanying text.
207. O.C.G.A. § 9-3-72.
FORTY-EIGHT STATES ARE PROBABLY NOT WRONG 835
adopting the springing statute of limitations for actions
attorneys assume an obligation to safeguard a client’s long-term
interests would not be so novel that it is impractical.209
B. Steps to Implementation
Public policy, precedence from the evolution of the medical
malpractice statute of limitations, and the experiences of other states
strongly indicate that the discovery rule is the fairest rule to apply for
legal malpractice. However, the courts should not judicially adopt the
A legislatively adopted statute of limitations eliminates
confusing and, at times, contradictory case law.211 The medical
malpractice statute of limitations slowly evolved from the occurrence
rule to the discovery rule through a series of constitutional challenges
based on equal protection.212 Ultimately though, the legislature
codified the common law because “prescribing periods of limitation
is a legislative, not a judicial, function.”213
Even in light of its potential for abuse, Georgia’s political
environment is not ripe for a change to the legal malpractice statute
of limitations. Various tort reform
measures over the years have
made it increasingly difficult to bring professional liability actions.214
One of many examples of legislation the General Assembly has
make most negligence actions more difficult is the
GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 33:3
requirement that plaintiffs file an affidavit from an expert explaining
how the defendant’s conduct fell below the standard of care.215
Statutes of limitations rarely receive the kind of attention that
would compel legislative action. Public outcry can be a powerful way
to induce decisive legislative action.216 Most cases that would
generate attention in the media and the kind of outcry that lead to
positive change settle prior to issuance of a judicial opinion.217
Lawyers, probably more than any other professionals, know the
inherent value in certainty and confidentiality, especially when their
professional reputation is on the line.218 Cases with bad facts for
defendant attorneys generally settle quickly and quietly.
The “perfect case” to effect positive change may not come
along.219 That is not an inherently bad thing for the profession
because, overall, public attention on attorney malfeasance does more
harm than good to the profession.220 However, the lack of publicity
on an uncertain and important issue imposes a greater burden on the
profession to be self-regulating.221 If and when the “perfect case”
comes along and generates negative publicity on attorney
malfeasance, and procedures are not in place to ensure that the
victims of that malfeasance are protected in a fair manner, the public
outcry will be directed against the profession for what the public will
perceive as self-serving “technicalities” designed to keep suits
against lawyers out of court.222 If that is how the public perceives the
“perfect case” to effect legislative change on the legal malpractice
statute of limitations, the results will likely not be satisfying for the
215. O.C.G.A. § 9-11-9.1 (2007); see also Steve Cohen, On Tort Reform, It’s Time to Declare Victory
and Withdraw, FORBES (Mar. 2, 2015, 9:59 AM), http://www.forbes.com/sites/stevecohen/2015/03/02/
216. Ramos, supra note 80, at 1725.
217. Id. at 1659 (citing AM. BAR ASS’N, STANDING COMM. ON LAWYERS PROF’L LIAB., PROFILE OF
LEGAL MALPRACTICE: A STATISTICAL STUDY OF DETERMINATIVE CHARACTERISTICS OF CLAIMS
ASSERTED AGAINST LAWYERS (1986)). “A full sixty-seven percent of claimants or plaintiffs receive no
compensation, seventy percent of those who do settle receive less than $1,000, and only one percent go
on to win at trial.” Id. at 1660.
218. Id. at 1690.
219. See supra notes 216–218 and accompanying text.
220. Ramos, supra note 80, at 1725.
FORTY-EIGHT STATES ARE PROBABLY NOT WRONG 837
profession. It is better for the profession to be the drivers of change
based on an analysis of all available facts and the experiences of the
Although Georgia, like many states, is hesitant to “open the
floodgates of litigation,” legal malpractice actions are exceptional.
Attorneys have an ethical duty to protect their clients’ interests.223
Unlike medical malpractice, legal malpractice does not have the
potential to end lives, but the consequences of legal malpractice are
often life-altering for plaintiff-clients, and the legislature and the
profession should protect them accordingly.224 The State Bar of
Georgia should continue to use its influence with the legislature to
push for any legislative clarity to legal malpractice and other
professional liability statutes of limitations, even if that clarity does
not directly lead to implementing the discovery rule. It must discuss
the strengths and weaknesses of Georgia’s current state and analyze
how other states confront those strengths and weaknesses. It must
make and propose changes to the legislature to make sure procedural
safeguards are in place that clearly advance the policy concerns of all
The occurrence rule is ill-suited to protect wronged clients who
have a cause of action for legal malpractice. Georgia’s rigid
adherence to the strict rule results in good cases getting thrown out
with bad ones, because clients often do not even know that they have
a cause of action before the statute of limitations runs.225 Forty-eight
states have recognized the pitfalls of the occurrence rule and adapted
or replaced it.226 Georgia should follow their lead and adopt the
discovery rule. The discovery rule does precisely what an effective
statute of limitations is supposed to do: ensure that a cause of action
does not have an unlimited life span while protecting the rights and
223. GA. RULES OF PROF’L CONDUCT pmbl. (2001).
224. See Talton, supra note 16; BLAND RICHTER, supra note 16.
225. See supra Part II.A.
226. See supra note 12 and accompanying text.
GEORGIA STATE UNIVERSITY LAW REVIEW
interests of the plaintiff.227 One case like Willis v. Maverick should be
enough to embarrass the profession and force quick changes.228 It is
in the best interest of the legal profession to advocate for adaptation
of the discovery rule to protect the clients that the profession serves
and the integrity of the profession itself.
227. See supra note 26 and accompanying text.
228. See supra notes 1–8 and accompanying text.
14. Clark , 298 S.E. 2d at 486 (“To impose a limitation period which may be exhausted before the cause of action accrues (i.e., before the patient dies), arbitrarily distinguishes between wrongful death, medical malpractice plaintiffs .”).
15. Trial Practice and Procedure, supra note 13, at 369-70.
16. See , e.g., Willis v . Maverick , 760 S.W.2d 642 , 642 (Tex. 1988 ). In that case, Chilton Maverick's negligent act left Ms. Willis without a home . Id.; see also Sherry L. Talton, $100 Million Legal Malpractice Verdict Provides Lessons for Litigators, AM. BAR ASS'N: LITIG . NEWS (March 10 , 2011 ), https://apps.americanbar.org/litigation/litigationnews/top_stories/031011-ethics -malpractice-multipleclients.html (discussing a Mississippi jury's award of $100 million in damages against a law firm that represented both parties in a dispute); Verdicts and Settlements , BLAND RICHTER, http://www.blandrichter.com/verdicts-and -settlements2.html (last visited Oct . 25 , 2016 ) [hereinafter BLAND RICHTER] (describing how an incorrect patent opinion led to the assessment of $5,508,000 against a negligent attorney).
17. GA. RULES OF PROF'L CONDUCT pmbl . ( 2001 ).
18. See Willis, 760 S.W.2d at 642.
19. See , e.g., GA. RULES OF PROF'L CONDUCT R. 4- 102 ( 2001 ). In Georgia, for example, the State Bar promulgates the Rules of Professional Conduct . Id. It enforces these rules through an administrative process where the Bar has powers up to and including disbarment . Id.
20. See , e.g., In re Minsk, 765 S.E.2d 361 , 362 (Ga. 2014 ) (disbarring a bankruptcy attorney for filing a bankruptcy petition on behalf of a client without consent and with forged signatures, making false statements to the client, and making errors in judgment that led to the client being held in contempt) ; In re Green , 622 S.E.2d 332 , 333 - 34 (Ga. 2005 ) (disbarring an attorney for accepting retainers from clients and then abandoning them) ; In re Kendall, 585 S.E.2d 882 , 882 - 83 (Ga. 2003 ) (disbarring a criminal defense attorney for giving his client notice of impending search and seizure warrants) ; In re Barrett, 577 S.E.2d 771 , 771 - 72 (Ga. 2003 ) (disbarring an attorney who was convicted of three counts of grand theft and one charge of carrying a concealed firearm in Florida) ; In re
33. See Jones , Day, Reavis & Pogue v. Am. Envirecycle , Inc., 456 S.E.2d 264 , 266 (Ga. Ct. App. 1995 ) (discussing the role of damages in a legal malpractice claim); Barnes v . Turner, 593 S.E.2d 9 , 10 (Ga. Ct. App. 2003 ), rev'd on other grounds, 606 S.E.2d 849 (Ga . 2004 ) (analyzing and rejecting plaintiff's contention that he could not have sued within the statute of limitations, because he did not suffer damage until after the statute of limitations has ran).
34. See Wendy Cox Dvorak, Casenote and Comment, Idaho's Statute of Limitations and Accrual of Legal Malpractice Causes of Action: Sorry, but Your Case Was over Before It Began 31 IDAHO L . REV. 231 , 231 - 32 ( 1994 ).
35. See Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 491 P.2d 421 , 428 (Cal. 1971 ).
36. See infra Part I.
37. See infra Part II.A.
38. See infra Part II.B-D.
39. See infra Part III.
40. For a discussion of Arkansas' adherence to the occurrence rule , see supra note 10.
41. Hunter , Maclean, Exley & Dunn, P.C. v. Frame, 507 S.E.2d 411 , 412 (Ga. 1998 ).
42. Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, L.L.C. , 795 A.2d 572 , 581 (Conn. App. Ct. 2002 ) (expressly adopting the continuous representation rule in Connecticut after a period of uncertainty as to whether or not the state had adopted it); Shumsky v . Eisenstein , 750 N.E.2d 67 , 72 - 73 (N.Y. 2001 ) (applying the continuous representation rule to toll the statute of limitations in a legal malpractice case); see also Larochelle v . Hodsdon , 690 A.2d 986 , 988 (Me. 1997 ); Greene v . Morgan,
63. Gebhardt v. O'Rourke , 510 N.W.2d 900 , 905 (Mich. 1994 ). For a discussion of statutes of limitation in general , see supra note 26.
64. See Joseph H. Koffler , Legal Malpractice Statutes of Limitations: A Critical Analysis of a Burgeoning Crisis, 20 AKRON L . REV. 209 , 211 ( 1986 ).
65. See id. at 212.
66. See id. at 216.
67. See id.
68. See id.
69. Larson & Larson, P.A. v. TSE Indus ., Inc., 22 So. 3d 36 , 45 (Fla. 2009 ) (explaining and later rejecting the continuous representation rule for Florida (citing Alagia, Day, Trautwein & Smith v . Broadbent , 882 S.W.2d 121 , 125 (Ky. 1994 ))) ; see also Neel v . Magana, Olney, Levy, Cathcart & Gelfand, 491 P.2d 421 , 428 (Cal. 1971 ).
70. See infra Parts II.B-D.
71. See Antone v. Mirviss , 720 N.W.2d 331 , 335 (Minn. 2006 ) (“[Under] the traditional 'occurrence' rule . . . the statute of limitations begins to run simultaneously with the performance of the negligent or wrongful act . . . . Most jurisdictions have moved away from the occurrence rule .”). The Minnesota Supreme Court went on to reject the occurrence rule, because of the potential to encourage “wasteful economic behavior” by attorneys and clients . Id. at 335-36.
72. See generally FIFTY-STATE SURVEY , supra note 12.
73. Mental Health Assocs., Inc. v. Carlson, 835 S.W.2d 551 , 553 (Mo. Ct. App. 1992 ).
74. Barnes v. Turner , 606 S.E.2d 849 , 852 (Ga. 2004 ).
75. New State Ice Co. v. Liebmann, 285 U.S. 262 , 311 ( 1932 ) (Brandeis , J., dissenting) ( “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country .”).
76. See , e.g., Paul S. Milich, Georgia's New Evidence Code-An Overview , 28 GA. ST. U. L. REV. 379 , 380 - 82 ( 2011 ) (discussing the slow evolution of Georgia's Evidence Code); see generally Erwin C. Surrency, The Georgia Code of 1863 and its Place in the Codification Movement , 11 J. S. LEGAL HIST . 81 ( 2003 ). The current version of the Official Code of Georgia still contains a significant number of vestiges from the 1863 Code, also known as the “Cobb Code” after its primary author . Id.
77. See generally FIFTY-STATE SURVEY , supra note 12.
78. Hunter , Maclean, Exley & Dunn, P.C. v. Frame, 507 S.E.2d 411 , 412 (Ga. 1998 ).
79. See FIFTY-STATE SURVEY , supra note 12.
80. Manuel R. Ramos , Legal Malpractice: The Profession's Dirty Little Secret , 47 VAND. L. REV. 1657 , 1689 - 90 ( 1994 ) (discussing how suits are often barred under the occurrence rule ).
81. Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 491 P.2d 421 , 424 - 25 (Cal. 1971 ); see also Dvorak, supra note 34 , at 255-59.
82. GA. RULES OF PROF'L CONDUCT R . 1 . 4 ( 2001 ) (imposing a duty to “promptly inform the client of any decision or circumstance with respect to which the client's informed consent . . . is required” and to “keep the client reasonably informed about the status of the matter”); GA . RULES OF PROF'L CONDUCT R. 1.7 (“A lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer's own interests . . . will materially and adversely affect the representation of the client” unless the client gives informed consent to continued representation .).
83. Antone v. Mirviss , 720 N.W.2d 331 , 335 - 36 (Minn. 2006 ) (adopting the damage rule and explaining that “the cause of action accrues and the statute of limitations begins to run when 'some' damage has occurred” (citing Herrmann v . McMenomy & Severson , 590 N.W.2d 641 , 643 (Minn. 1999 ))).
84. Frates v. Sutherland, Asbill & Brennan, 296 S.E.2d 788 , 791 (Ga. Ct. App. 1982 ) (“[T]he [engagement] letter merely confirms representation in broad terms and outlines in detail only the fee arrangement between the parties . It clearly does not constitute the entire agreement for legal services between the parties .”).
85. Shores v. Troglin , 580 S.E.2d 659 , 660 - 61 (Ga. Ct. App. 2003 ) (denying the appeal of an appellant who lost in summary judgment on a statute of limitations defense, because the appellant was not able to produce any evidence of “an independent act of fraud” (citing Hunter, Maclean, Exley & Dunn v . Frame , 507 S.E.2d 411 , 413 - 14 (Ga. 1998 ))); see Richard C. Ruskell, Fraud of the Defendant, in DAVIS AND SHULMAN'S GEORGIA PRACTICE AND PROCEDURE, § 30 : 14 ( 2015 -2016 ed.).
86. See Ruskell, supra note 85 , at § 30 : 14 .
87. O.C.G .A. § 9-3-96 ( 2016 ) (allowing a plaintiff to toll the statute of limitations for fraud, with the statute beginning to run when the plaintiff discovers the fraud ).
88. Godwin v. Mizpah Farms , L.L.L.P. , 766 S.E.2d 497 , 506 (Ga. Ct. App. 2014 ) (finding no actual evidence of fraud that would toll the statute of limitations, and noting that “under Georgia law, fraud that gives rise to a cause of action does not necessarily establish the fraud necessary to toll the statute of limitation” (quoting Hendry v . Wells , 650 S.E.2d 338 , 344 (Ga. Ct. App. 2007 ))).
89. See , e.g., Barnes v . Turner , 606 S.E.2d 849 , 852 (Ga. 2004 ); Hunter, 507 S.E.2d at 412; Shores, 580 S.E.2d at 660 -61.
90. O.C.G .A. § 9-3-96 ( 2016 ). While this exception is small, it is essential in a jurisdiction that uses the occurrence rule without the continuous representation rule . George L. Blum, Attorney MalpracticeTolling or Other Exceptions to Running of Statute of Limitations, 87 A.L.R. 5th 473, § 2 [b] ( 2001 ).
91. Riddle v. Driebe , 265 S.E.2d 92 , 95 (Ga. Ct. App. 1980 ) (holding that statements by the attorney to the client that documents he prepared were legally sufficient was not “actionable as actual fraud nor designed to deter or debar Riddle from bringing suit”); Wood v . Noland Credit Co., 149 S.E.2d 720 , 721 (Ga. Ct. App. 1966 ) (explaining that broken promises do not equate to fraud); see also Shores, 580 S.E.2d at 661 (declining to toll the statute because the plaintiff failed to present any “evidence of an independent act of fraud that prevented him from discovering the alleged malpractice or filing suit”).
92. Hyman v. Jordan , 412 S.E.2d 615 , 617 (Ga. Ct. App. 1991 ) (declining to toll the statute because the plaintiff “did not show that [he] was prevented or deterred by any act of [the defendants] from discovering [their] alleged negligence” (citing Kilby v . Shepherd , 339 S.E.2d 742 , 744 (Ga. Ct. App. 1986 ))).
93. Hunter , 507 S.E.2d at 413 (“[I] t must be shown that the defendant concealed information by an intentional act-something more than a 'mere failure, with fraudulent intent, to disclose such 120 . Jennifer Thornton , Comment, Louisiana Revised Statute Section 9 :5605: A Louisiana Lawyer's Best Friend , 74 TUL. L. REV. 659 , 667 - 68 ( 1999 ).
121. Janicki , 37 P. 3d at 315 (citing Peters v . Simmons , 552 P. 2d 1053 ( Wash . 1976 )).
122. James L. Floyd , III, South Carolina Tort Law: For Whom The Statute of Limitations Tolls-The Epstein Court's Rejection of the Continuous Representation Rule , 57 S.C. L. REV . 643 , 662 (discussing South Carolina Supreme Court Chief Justice Toal's dissent and her desire to create a “bright line rule” to create certainty as to when the statute of limitations actually begins accruing).
123. DAVID J. MEISELMAN , ATTORNEY MALPRACTICE : LAW AND PROCEDURE, 4- 8 ( 1980 ).
124. Id . at 75.
125. Hunter , Maclean, Exley & Dunn v. Frame , 507 S.E.2d 411 , 413 (Ga. 1998 ) (“[P]rescribing periods of limitation is a legislative, not a judicial, function . . . .”).
126. MEISELMAN, supra note 123, at 55-59; see also Dalton v. Dow Chem . Co., 158 N.W.2d 580 , 585 (Minn. 1968 ) (“Until there is some damage, there is no claim . . . .” (citing Brush Beryllium Co . v. Meckley, 284 F.2d 797 , 800 ( 6th Cir . 1960 ))). 127 . Antone v. Mirviss , 720 N.W.2d 331 , 335 - 36 (Minn. 2006 ) (adopting the damage rule and explaining that “the cause of action accrues and the statute of limitations begins to run when 'some' damage has occurred” (quoting Herrmann v . McMenomy & Severson , 590 N.W.2d 641 , 643 (Minn. 1999 ))). ballotpedia.org/Political_outlook_ of_state_supreme_court_justices (last visited Oct . 30 , 2016 ).
159. Williams v. Deltan Int'l Mach. Corp., 619 So.2d 1330 , 1333 (Ala. 1993 ). It appears that by the end of the twentieth century, the Alabama Supreme Court was upholding the doctrine of contributory negligence out of inertia: We have heard hours of oral argument; we have read numerous briefs; we have studied cases from other jurisdictions and law review articles; and in numerous conferences we have discussed in depth the issue and all of the ramifications surrounding such a change. After this exhaustive study and these lengthy deliberations, the majority of this Court, for various reasons, has decided that we should not abandon the doctrine of contributory negligence, which has been the law in Alabama for approximately 162 years . Id. (citing Bethea v . Taylor , 3 Stew. 482 ( Ala . 1831 )). There have, however, been strong urgings to change the harsh contributory negligence rule in the past . E.g., General Motors Corp . v. Saint, 646 So.2d 564 , 568 - 69 (Ala. 1994 ) (Hornsby, C .J., dissenting). In General Motors Corp . v. Saint, Chief Justice Hornsby described the rule as archaic and overly harsh . Id.; see also Campbell v. Ala. Power Co., 567 So.2d 1222 , 1227 - 31 (Ala. 1990 ) (Hornsby, C .J., dissenting).
160. Aaron G. McLeod & Stephen A. Rowe , State of Alabama, in FIFTY-STATE SURVEY, supra note 12 , at 5-6.
161. ALA. CODE § 6-5-574 ( 1988 ) ; see also Michael v . Beasley , 583 So. 2d . 245 , 246 (Ala. 1991 ).
162. ALA. CODE § 6-5-574.
163. See supra Part II.A.
164. See supra Part II.A.
165. Hummer v. Pulley, Watson, King & Lischer, P.A. , 536 S.E.2d 349 , 354 (N.C. Ct . App. 2000 ); 209 . Hamburger v. PFM Capital Mgmt ., Inc., 649 S.E.2d 779 , 785 - 86 (Ga. Ct. App. 2007 ) (explaining the springing statute of limitations established in Barnes v. Turner but declining to apply it, holding that it only applies to legal malpractice).
210. Hunter , Maclean, Exley & Dunn, P.C. v. Frame, 507 S.E.2d 411 , 413 (Ga. 1998 ) (“[P]rescribing periods of limitation is a legislative, not a judicial, function . . . .”).
211. See supra notes 52-62 and accompanying text.
212. Peter Zablotsky , From a Whimper to a Bang: The Trend Toward Finding Occurrence Based Statutes of Limitations Governing Negligent Misdiagnosis of Diseases with Long Latency Periods Unconstitutional , 103 DICK. L. REV. 455 , 456 - 70 ( 1998 ).
213. Hunter , 507 S.E.2d at 413.
214. Emily Ruth Boness, Note, The Effect (or Noneffect) of the 2005 Amendments to O. C.G.A. Sections 51- 12 -31 and 51 -12-33 on Joint Liability in Georgia, 44 GA. L. REV. 215 , 221 - 24 ( 2009 ) (discussing the history of the “tort reform” movement in Georgia); Laurin Elizabeth Nutt, Note, Where Do We Go from Here? The Future of Caps on Noneconomic Medical Malpractice Damages in Georgia, 28 GA . ST. U. L. REV. 1341 , 1344 - 45 ( 2011 ).