If there is malpractice in litigation, should the statute for malpractice begin to run before the underlying litigation comes to an end. Kentucky has joined a number of states offering more flexibility to plaintiffs on this issue. Illinois has a statute of limitations for malpractice (2 years) and hard statute of repose (6 years). The Illinois Statute of Repose often defeats claims that would not be fully apparent until the underlying litigation comes to an end.

Humphrey v. Miller and Wells, PLLC (Ky. Ct. App. 2026, not to be published)

Background: This is the third case in a trilogy of litigation stemming from Sherry Humphrey’s dispute over a family trust/estate. In Humphrey I, a declaratory judgment action, an agreed judgment was entered in 2019 (amended 2020). While Humphrey I was pending, Sherry filed a separate suit against the trustee bank (Humphrey II) for breach of fiduciary duty; that case was dismissed because the claims should have been raised as compulsory counterclaims in Humphrey I, and this Court affirmed that dismissal in 2018 (cert denied by the Kentucky Supreme Court later that year).

Campbell v. Law offices of Solomon Rosengarten, 241 A.D.3d 771 (2025), 238 N.Y.S.3d 679, 2025 NY Slip Op 04700, is a decision of the Appellate Division of the Supreme Court of New York reinstating a legal malpractice claim that the trial court had dismissed as time-barred. The explanation:

In 2016, Campbell executed a consent to change attorneys form and filed it in the Supreme Court, Kings County. Campbell then moved in the Supreme Court to restore the action to the active calendar, for summary judgment on the issue of liability, and for leave to file a note of issue. In an order dated November 22, 2017, the motion was denied without prejudice to refile in the Civil Court, Kings County. Campbell then moved in the Civil Court to restore the action to the active calendar and for summary judgment on the issue of liability. In an order dated December 10, 2019, the Civil Court denied the motion (hereinafter the Civil Court order).

In January 2020, Campbell commenced this action, inter alia, to recover damages for legal malpractice. The defendants moved, among other things, pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice as time-barred. In an order dated May 25, 2023, the Supreme Court, inter alia, granted that branch of the motion. Campbell appeals.

One of the most difficult issues in some malpractice litigation is whether the law suit was timely or not. Generally, the plaintiff has two years from the date of discovery of the problem. Each case is different and there is often argument as to when a plaintiff should have become aware of the facts leading him to suspect legal malpractice. The defense will often argue that the plaintiff should have suspected his injury or investigated the problem before the plaintiff contends that he was aware.

Suburban Real Estate Services, Inc. v. Carlson, 2022 IL 126935, clarifies some of these issues for legal advice that causes litigation. In the Carlson case, in 2010 the plaintiff hired a lawyer to advise him on how to terminate a joint venture with another company. The attorney allegedly advised the plaintiff to terminate the arrangement. In August 2010, the adverse party disagreed and filed a lawsuit for breach of fiduciary duty. In July 2015, after a trial, the court awarded damages in favor of the adverse party.

The key question is when did the claim arise? The defense argued that the statute of limitations began to run when the plaintiff had to hire a new attorney to defend the breach of fiduciary action. So under the defense view, plaintiff discovered his injury in 2010 and should have sued for malpractice by 2012.  Plaintiff argued that he was not aware of the allegedly incorrect legal advice until the adverse judgment was entered in the underlying case in 2015. The Illinois Supreme Court held that the injury accrued upon the entry of the adverse judgment.