How to sue your lawyer in Indiana.

Indiana applies the 2-year statute of limitations in Ind. Code § 34-11-2-4 to legal malpractice. Two doctrines decide when those 2 years begin.

The discovery rule

Indiana courts hold that the period does not begin until the client knows, or in the exercise of ordinary diligence could have discovered, that he was injured by the lawyer's act. The Court of Appeals restated the rule in Warren v. Epstein (Ind. Ct. App. 2017). In Indiana, a legal malpractice lawsuit must be filed within 2 years of when the client discovered, or with ordinary diligence could have discovered, the injury.

Continuous representation

In Biomet, Inc. v. Barnes & Thornburg, 791 N.E.2d 760 (Ind. Ct. App. 2003), the Court of Appeals adopted the continuous representation doctrine as an exception to the discovery rule. Under Indiana's continuous representation doctrine, the 2-year malpractice clock does not start until the lawyer's representation of the client in the same matter ends. The pause applies only to the matter where the mistake happened, not to unrelated work the lawyer did for you.

How the rules work together

Godby v. Whitehead shows the discovery rule at work. The client said his lawyer failed to raise an ineffective-assistance claim in a postconviction case. The Court of Appeals held the client was damaged, if at all, when the lawyer failed to present that claim, so the 2 years ran from then, not from the end of later proceedings. The practical lesson: once you know a specific failure hurt you, count 2 years from that point unless the lawyer is still representing you on the same matter.

No repose

We found no separate statute of repose for Indiana legal malpractice. The discovery rule is not open-ended, though: courts look at when a reasonable person would have caught on, and a warning letter or an adverse ruling can start the clock. Compare other states in the 50-state deadline table.

Indiana courts, as in Godby v. Whitehead, 837 N.E.2d 146 (Ind. Ct. App. 2005), list three elements. An Indiana legal malpractice plaintiff must show that he employed the lawyer, that the lawyer failed to exercise ordinary skill and knowledge, and that the failure was the proximate cause of damage to the client.

• Employment. A real attorney-client relationship.
• Failure of ordinary skill and knowledge. The lawyer fell below the standard of care. A reasonable strategy that failed does not count; see what is not legal malpractice.
• Proximate cause. Usually proven through the case within a case. See the case within a case explained.

Experts

Indiana courts say an expert witness is normally required to establish the standard of care, as in Hacker v. Holland, 570 N.E.2d 951 (Ind. Ct. App. 1991), and Storey v. Leonas, 904 N.E.2d 229 (Ind. Ct. App. 2009). The exception is when the question is within the common knowledge of lay jurors. Indiana does not require a certificate of merit to file suit against a lawyer. See legal malpractice expert witnesses.

Indiana takes the minority position. In Silvers v. Brodeur, 682 N.E.2d 811 (Ind. Ct. App. 1997), the Court of Appeals refused to delay accrual until a defendant gets relief from the conviction and held that the discovery rule governs. Godby v. Whitehead (2005) confirmed that a criminal defendant does not have to prove innocence before filing and does not have to exhaust postconviction remedies first. In Indiana, a former criminal defendant must file a malpractice suit within 2 years of discovering the malpractice, even if postconviction proceedings are still pending.

That can be a trap. People who wait for a postconviction ruling before suing can lose the malpractice claim. See criminal defense malpractice and ineffective assistance vs. legal malpractice.

Fee disputes

The Indiana State Bar Association discontinued its statewide Attorney Fee Dispute Resolution program effective February 5, 2021. Some local bar associations still help. For example, the Allen County Bar Association's Fee Dispute Committee accepts a Request for Fee Arbitration (260-423-2359). The Disciplinary Commission does not handle disputes over the amount of a fee unless the fee is clearly unreasonable. Otherwise, small claims court may fit; see suing a lawyer in small claims court and attorney fee dispute arbitration.

Clients' Financial Assistance Fund

The ISBA's Clients' Financial Assistance Fund pays, as a matter of grace, for money or property a lawyer misappropriated. Because the ISBA is a voluntary bar, the lawyer must have been an ISBA member when the conduct happened. Indiana's Clients' Financial Assistance Fund currently limits awards to $15,000 per claimant and $50,000 for claims arising from any one lawyer. You must have filed a grievance with the Disciplinary Commission (unless the lawyer is deceased, disbarred, or resigned), and the conduct must have happened, or been reasonably noticeable, within the past 2 years. Malpractice and fee disputes are not covered. See stolen client funds.

Grievances go to the Indiana Supreme Court Disciplinary Commission through a Request for Investigation form, filed online or by mail. The office can be reached at 317-232-1807. Anyone can file, and a grievance cannot be withdrawn once filed.

The commission is candid about its limits: a single mistake or error in judgment is not likely to be addressed, and it does not recover your money or file criminal charges. An Indiana grievance can lead to lawyer discipline, but the Disciplinary Commission says it does not recover your money, so a civil suit is the route to compensation. A bar grievance also does not pause the 2-year deadline. See legal malpractice vs. a bar complaint.

Indiana does not require individual lawyers to carry malpractice insurance, so ask early whether your lawyer is insured. See does your lawyer have malpractice insurance.

1. Find two dates. When you learned of the problem, and when the lawyer's work on that matter ended. The later one usually starts the 2 years.
2. Get your file. Request your complete client file in writing. See how to get your case file.
3. Do not wait on postconviction relief if you are a former criminal defendant.
4. Ask about insurance. Indiana does not require it, and an uninsured lawyer may be hard to collect from. See how much a legal malpractice case is worth.

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 in Indiana who handles legal malpractice claims.