How to sue your lawyer in Mississippi.

Mississippi has no statute written just for legal malpractice. Claims fall under the three-year statute of limitations in Miss. Code Ann. § 15-1-49.

The discovery rule

In Smith v. Sneed, 638 So. 2d 1252 (Miss. 1994), the Mississippi Supreme Court held that "the statute of limitations in a legal malpractice action properly begins to run on the date the client learns or through the exercise of reasonable diligence should learn of the negligence of his lawyer." The trial court had started the clock on the date of the client's guilty plea, and the Supreme Court reversed.

In Mississippi, a legal malpractice suit must be filed within three years of when the client learned, or with reasonable diligence should have learned, of the lawyer's negligence.

No continuous representation rule

Some states pause the clock while the lawyer keeps working on the matter. Mississippi does not. In Bennett v. Hill-Boren, P.C., 52 So. 3d 364 (Miss. 2011), the court repeated its earlier holding in Channel v. Loyacono that "Mississippi does not follow the 'continuous representation rule.'" Bennett applied the discovery rule instead, and held there was a fact question about when the client should have known, because she said she learned of the problem only when new counsel got the case file. Mississippi does not follow the continuous representation rule, so the three years can run while your lawyer is still handling the matter.

The court in Bennett explained that the discovery rule applies when "it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act." We found no statute of repose for legal malpractice in Mississippi.

In Hickox ex rel. Hickox v. Holleman, 502 So. 2d 626 (Miss. 1987), the Mississippi Supreme Court said a legal malpractice plaintiff must prove by a preponderance of the evidence: "1. Existence of a lawyer-client relationship. 2. Negligence on the part of the lawyer in handling his client's affairs entrusted to him; and 3. Proximate cause of injury."

For negligence claims, proximate cause means the "trial-within-a-trial" test, Mississippi's name for the case within a case. As the court put it in Crist v. Loyacono, 65 So. 3d 837 (Miss. 2011), the client "must show that, but for [his] attorney's negligence, he would have been successful in the prosecution or defense of the underlying action."

Standard of care vs. standard of conduct

Mississippi splits malpractice into two kinds of claims:

• Negligence (breach of the standard of care). In Lane v. Oustalet, 873 So. 2d 92 (Miss. 2004), the court said "expert testimony is necessary to establish the breach of a duty of care in a claim of legal malpractice."
• Breach of fiduciary duty (breach of the standard of conduct). Lane held that a closing attorney's failure to disclose a termite report could go to a jury without an expert witness. Crist added that these claims do not require proof that you would have won the underlying case. Instead you prove an attorney-client relationship, acts violating the lawyer's fiduciary duty, that the breach proximately caused your injury, and the fact and extent of that injury.

In Mississippi, a negligence-based legal malpractice claim requires expert testimony, but a claim that the lawyer breached a fiduciary duty may reach a jury without one. Mississippi has no certificate of merit requirement for suits against lawyers that we found. See breach of fiduciary duty.

We did not find a Mississippi Supreme Court decision adopting or rejecting an exoneration or actual innocence requirement, so that question is unsettled. Smith v. Sneed itself was a criminal case: the client said his lawyer advised a guilty plea to manslaughter without first getting the victim's autopsy report. The conviction was later set aside after new evidence surfaced, and the Supreme Court held his malpractice claim ran from discovery, not from the plea. In Mississippi, the three-year clock for suing a criminal defense lawyer runs from when the client learns or should learn of the negligence, not from the guilty plea or sentencing. See criminal defense malpractice.

The Mississippi Bar runs a fee arbitration program through its Fee Dispute Resolution Committee, which mediates and, if needed, arbitrates disputes over attorney fees. The Mississippi Bar's Fee Dispute Resolution Committee handles fee disputes at no cost, but only if both the client and the lawyer independently agree to participate. You send a written request to the Committee at P.O. Box 2168, Jackson, MS 39225-2168, with the fees charged, the amount you think is excessive, and why. If the dispute is not settled, both sides sign an agreement to submit it to arbitration. See our fee arbitration guide.

For theft by a lawyer, Mississippi has a client protection fund called the Client Security Fund, administered through The Mississippi Bar's Office of General Counsel. We could not find a published per-claim cap or filing deadline, so contact the Bar's Office of General Counsel at (601) 948-0568 for current rules. See how client protection funds work.

In Mississippi, the first step is the Bar's Consumer Assistance Program (CAP), reachable at (601) 948-2344 or by mail at P.O. Box 2168, Jackson, MS 39225-2168. If a bar grievance is warranted, CAP sends a grievance form to complete and return to the Bar's Office of General Counsel, which handles discipline.

Discipline and a lawsuit do different jobs. Public discipline in Mississippi includes public reprimand, suspension, and disbarment, but none of these pays you. Filing a grievance with The Mississippi Bar does not recover your losses or pause the three-year malpractice deadline. The Office of General Counsel will tell the public an attorney's current status and any public discipline. See legal malpractice vs. a bar complaint.

Mississippi does not require lawyers to carry malpractice insurance, and we did not find a rule requiring them to disclose their coverage.

1. Write down when you first learned, or should have learned, of the lawyer's mistake. Count three years.
2. Do not assume staying with the lawyer buys you time. It does not in Mississippi.
3. Decide whether your claim is negligence (you will need an expert) or breach of fiduciary duty.
4. For billing, contact the Fee Dispute Resolution Committee. For theft, contact the Office of General Counsel.

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 Mississippi who handles legal malpractice claims.