How to sue your lawyer in Delaware.

Under 10 Del. C. § 8106(a), a legal malpractice claim must be filed within three years from the accruing of the cause of action. The Delaware Supreme Court explained accrual in ISN Software Corp. v. Richards, Layton & Finger, P.A., 226 A.3d 727 (Del. 2020). Delaware is an "occurrence rule" jurisdiction, so a claim accrues at the time of the wrongful act, even if the plaintiff is ignorant of the cause of action. For a tort claim like legal malpractice, that is the time of injury. In Delaware, a legal malpractice claim accrues when the client suffers an injury, however slight, from the lawyer's mistake, and must be filed within 3 years.

The court expressly declined to adopt the rules some states use, such as waiting until damages are known or the underlying case ends. In ISN Software, the law firm told its client in January 2013 that its advice may have been wrong. The client sued in 2018, after a later court ruling fixed how much the mistake cost. The court held the claim was too late because the injury happened in 2013.

Delaware applies only a limited discovery rule. The statute is tolled when the injury is inherently unknowable and the client is blamelessly ignorant of the wrongful act and the injury. Otherwise, ignorance of the claim does not stop the clock unless there was concealment or fraud. A Superior Court case, Boerger v. Heiman (2007), refused to toll the statute where the client's own statements showed he knew the relevant facts.

A 2016 national practitioner compendium reported that Delaware had not adopted the continuous representation rule, and we found no Delaware Supreme Court decision adopting it since. We also found no separate statute of repose for legal malpractice. Compare states in the deadline table.

Delaware deadline rules at a glance

A Delaware plaintiff must prove three elements: the employment of the attorney, the attorney's neglect of a reasonable duty (the standard of care, measured by what a reasonably prudent attorney in the community would do), and that the neglect caused a loss (proximate cause and damages). When the mistake happened in a lawsuit, that usually means proving the case within a case.

Delaware has no certificate of merit or affidavit of merit requirement for suits against lawyers. But Delaware law is well settled that an expert witness is needed to establish the lawyer's duty of care and breach, except when the mistake is so obvious that a layperson using common sense can judge it. A Delaware malpractice claim has to be filed within 3 years of the injury and usually needs an expert to prove the lawyer fell below the standard of care.

Losing a case or disliking a strategy is not the same as malpractice. See what is not legal malpractice and the expert witness guide.

Damages usually mean the money you lost because of the mistake: the recovery you would have won in the original case, extra fees you paid another lawyer to fix the problem, or the value of a deal or right the lawyer let slip away. A clear error that caused no measurable loss usually does not support a malpractice claim.

Many states require a former criminal defendant to have the conviction overturned, and sometimes to prove actual innocence, before suing a defense lawyer. We did not find a controlling Delaware appellate decision on that question, so treat it as unsettled. Because Delaware's 3 year clock starts at injury, a former defendant should not assume it waits for an appeal or postconviction ruling.

Claims of ineffective assistance belong in the criminal case. See criminal defense malpractice and can you sue a public defender.

The Delaware State Bar Association's Fee Dispute Committee resolves controversies between lawyers and clients over fees. To start, you complete and sign a Petition and an Agreement to Arbitration and deliver them to the committee chair, not to the bar association's office. The committee does not give legal advice or tell you what fee is "customary." Delaware's ethics rules say a lawyer must comply with a bar fee arbitration procedure when it is mandatory and should conscientiously consider it when it is voluntary. Delaware's Office of Disciplinary Counsel will not adjudicate fee disputes, so fee fights go to the DSBA Fee Dispute Committee or to court. See our fee dispute guide.

For stolen money, the Lawyers' Fund for Client Protection of the Supreme Court of Delaware is the state's client protection fund. It was created by the Delaware Supreme Court to provide monetary relief to clients who suffered financial losses because of a lawyer's dishonest conduct. New fund rules took effect November 20, 2025, so check the fund's current rules for limits and deadlines before you apply. See stolen client funds.

The Office of Disciplinary Counsel (ODC) assists the Delaware Supreme Court in regulating lawyers. It evaluates and investigates bar grievance complaints alleging violations of the Delaware Lawyers' Rules of Professional Conduct. You file an ODC complaint form, one per lawyer, preferably electronically, with a detailed factual statement, specific dates, and copies of court filings, letters, and fee agreements. Disciplinary complaints and proceedings are confidential.

ODC does not give legal advice, will not tell you whether to file, and will not represent you. A Delaware disciplinary complaint cannot recover your money or stop the 3 year malpractice clock. Read malpractice vs. a bar complaint before choosing a path.

1. Find the earliest date you were harmed by the mistake, even slightly. That likely started your three years.
2. Write down when and how you learned of the problem, in case the inherently unknowable exception applies.
3. Request your client file. See how to get your case file.
4. Speak with a lawyer who handles malpractice claims promptly.

What to gather before you talk to a lawyer

• The engagement letter or fee agreement.
• Every bill and proof of payment.
• Emails, texts, and letters with the lawyer, especially anything about deadlines or case status.
• Court papers from the original matter, including any dismissal order or judgment.
• A short timeline: when you hired the lawyer, when the mistake happened, when you found out, and when the lawyer stopped working for you.

A malpractice lawyer will usually check that timeline against the Delaware deadline first, because a late claim cannot be saved no matter how strong it is.

If you think your lawyer's mistake cost you, a free case review takes about two minutes and can connect you with an independent attorney who handles legal malpractice claims in Delaware.