Chicago Legal Malpractice Lawyer Blog
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 App. 2026, not to be published)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).
On December 4, 2019 — before Humphrey I concluded — Sherry sued her former attorney, Mason Miller, and his firm for legal malpractice (Humphrey III). The circuit court granted summary judgment for the defendants, reasoning that the malpractice claim wasn’t ripe when filed (since Humphrey I hadn’t yet concluded), and that by the time the claim did ripen, the one-year statute of limitations had run. The court also rejected relation-back amendment under CR 15.03.
Issue: When did Sherry’s malpractice claim accrue for statute-of-limitations purposes — and was Humphrey III timely?
Holding: Reversed and remanded. Applying the Kentucky Supreme Court’s recent decision in Wolfe v. Kimmel, 681 S.W.3d 7 (Ky. 2023), the Court of Appeals held that a litigation-malpractice claim doesn’t accrue until the underlying case becomes final, and what matters is the claimant’s “knowledge that one has been wronged,” not “knowledge that the wrong is actionable.” The panel identified the relevant “underlying litigation” as Humphrey II (not Humphrey I), noting the circuit court itself acknowledged that the Court of Appeals’ decision in Humphrey II made counsel’s alleged negligence “palpable.” Since Humphrey III was filed within one year of Humphrey II becoming final, it was timely.
Notable language: The court expressly limited its holding to “the unique facts of the present case,” acknowledging that not every case will fit neatly into Wolfe‘s framework and that courts should meet such outlier cases “with practicality and not rigid legal formality.” The panel did not reach the merits of the underlying malpractice claim.
Both cases deal with accrual timing for litigation-based legal malpractice claims, but they reach very different results because Kentucky and Illinois structure their limitations frameworks differently.
Watson v. Sullivan, 2026 IL App (5th) 250229-U (Illinois)
- Underlying claim: a § 1983 suit the attorneys allegedly failed to timely file.
- Illinois applies a six-year statute of repose (735 ILCS 5/13-214.3) that runs independently of the discovery rule, anchored to the date the underlying claim became time-barred (the “occurrence” date) — not to any later event like final resolution of related litigation.
- The court held the malpractice claim accrued when the underlying § 1983 limitations period expired (Jan. 25, 2016), making repose run out Jan. 25, 2022 — before Watson filed (Aug. 10, 2022). The discovery rule couldn’t rescue her because repose trumps discovery in Illinois; even her most favorable discovery date still missed the separate two-year limitations window.
- Net effect: Illinois’s repose statute created a hard outer deadline tied to the underlying claim’s own limitations expiration, regardless of when the malpractice became “reasonably discoverable” or when related litigation concluded.
Humphrey v. Miller and Wells, PLLC (Kentucky, 2026, unpublished)
- Underlying representation: a trust/estate dispute (Humphrey I), with a related suit against a trustee bank (Humphrey II) running in parallel.
- Kentucky has no separate repose statute at issue here — just the one-year malpractice limitations period (KRS 413.245), governed by the accrual rule from Wolfe v. Kimmel: a litigation-malpractice claim doesn’t accrue until the underlying case becomes final, because until then the claimant can’t show harm, causation, or damages.
- The court held the relevant “underlying litigation” was actually Humphrey II (not Humphrey I, the case in which the malpractice occurred), because that’s when Sherry had “knowledge that she’d been wronged.” Filing within a year of Humphrey II becoming final made her malpractice suit timely — even though it was filed before Humphrey I itself concluded.
- Net effect: Kentucky’s finality-based accrual rule is comparatively claimant-protective and flexible, letting courts identify whichever related proceeding actually triggered awareness of the wrong, and the panel emphasized this was a fact-specific, non-formulaic inquiry (“practicality…not rigid legal formality”).
Key doctrinal contrast
| Illinois (Watson) | Kentucky (Humphrey) | |
|---|---|---|
| Governing trigger | Statute of repose tied to expiration of underlying claim’s own limitations period | Accrual tied to finality of underlying litigation |
| Discovery rule | Cannot extend past repose deadline | Not really in play; finality substitutes for “discovery” |
| Flexibility | Rigid, formulaic, outer-limit driven | Fact-specific, court identifies operative “underlying” case |
| Result | Barred (7 months late under repose) | Timely (filed within a year of the triggering case’s finality) |
Illinois’s approach is far less forgiving of multi-track, sequential litigation like Sherry Humphrey’s — a Watson-style claimant with a similarly staggered procedural history would likely have been time-barred under Illinois’s repose statute, since Illinois doesn’t ask which parallel case “made the negligence palpable” the way Humphrey‘s Wolfe-based test does.
If you have a question about malpractice, don’t hesitate to contact us.
Ed Clinton, Jr.