Lawyers applaud new statute of repose

By Brian Frasier Dolan Media Newswires For years, lawyers facing malpractice lawsuits could face liability going back several years--and in rare cases, even decades. But because of a newly enacted statute of repose, MCL 600.5838b, plaintiffs have only six years after the date the alleged malpractice was committed to bring suit, regardless of when it was discovered. The statute, which was introduced by Sen. Tonya Schuitmaker, R-Antwerp Twp., as SB 1296, was signed into law Jan. 2, and took effect that same day. The statute retains the same statute of limitations for legal malpractice cases outlined in MCL 600.5838, which has two different limitations periods with two separate triggers for accrual. First, a plaintiff has two years from the date of the last professional service rendered out of which the claim arose, Southfield attorney Michael Sullivan explained. The statute of limitations has an alternative "discovery" rule, under which a plaintiff has six months from the day the malpractice was discovered or should have been discovered to bring an action. The new statute of repose, 5838b, ends liability six years after the date of the alleged malpractice regardless of when it is discovered or the last day of professional services are rendered, Sullivan said. "The important part is that it puts an ultimate cap on the claim," he said. "From the lawyer's perspective, he doesn't have to worry about being sued for malpractice maybe 10 years after he retired." Sullivan said a statute of repose isn't unusual, as other professionals, including contractors, engineers, architects, and doctors, are protected by similar statutes. Schuitmaker said the bill was originally brought to her attention by the Probate and Estate Planning Section of the State Bar of Michigan. Her father, Paw Paw attorney Harold Schuitmaker, is an ex-officio of the section. Schuitmaker also is an attorney and has practiced law out of her father's office. The bill was originally written to state that a malpractice action "shall not be commenced later than 6 years after the date of the act or omission that is the basis for the claim." It was changed by substitute in the House Judiciary Committee to incorporate the current statute of limitations, and state the new statute of repose. The change was proposed by the Probate and Estate Planning Section, Schuitmaker said. Holland attorney Mark Harder, chair of the section, said some section members were concerned that the original bill language could be interpreted as actually extending the statute of limitations from two years to six years, rather than capping liability after six years. Sullivan said he isn't aware of any cases in which the long time span was much of an issue. "Most of the cases that we see where the statute [of limitations] was blown on a legal malpractice case, it's pretty close; somebody miscalculates. Generally, it's going to be around two years." Sullivan said it's more likely to be seen in the estate planning context, where an attorney writes a will, but the client doesn't die for many years later when an attorney might be retired and no longer have insurance. "If somebody has a will drafted when they are 30 and dies when they are 80, that's 50 years after the lawyer did it," he said. "The lawyer is probably dead and the firm may be dissolved." Harder said that's exactly the scenario against which the law was designed to protect. "Very often, estate planners will draft wills and documents for the client; we'll give them to the client and that's the last we'll see of them for a long time," he said. "If, unfortunately, there's a mistake or an error, when that problem might be revealed 15 years down the line, witnesses might be dead, witnesses might be incompetent; people might have moved and cleaned out their own files. It becomes very difficult to determine what happened and why an alleged mistake occurred. "There needs to be closure for estate planners like there is for contractors who build a building with a latent defect that doesn't get discovered for years later." Harder said he wasn't aware of an extreme anecdotal case that led to the section's interest in getting the statute enacted. But this was something the section had been working on getting passed for several years. "This is something that had been talked about at the council of the Probate and Estate Planning Section for seven or eight years, probably," he said. "It's come up a number of different times, and we've approached legislators at various different points. But it was this year that we were finally able to get it passed." Published: Mon, Jan 21, 2013

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