How to sue your lawyer in Missouri.

In Klemme v. Best, 941 S.W.2d 493 (Mo. banc 1997), the Supreme Court of Missouri held that "actions for legal malpractice based on negligence are governed by the five-year statute of limitations in § 516.120(4)." The court applied the same five years to a client's claim for breach of fiduciary duty against his lawyer.

In Missouri, a legal malpractice suit must be filed within five years after the damage is sustained and objectively capable of ascertainment.

When damage is "capable of ascertainment"

Missouri's statute of limitations "begins to run when damage is sustained and objectively capable of ascertainment." Klemme explained what that means: damage "is ascertainable when the fact of damage can be discovered or made known, not when the plaintiff actually discovers injury or wrongful conduct." And "all possible damages do not have to be known, or even knowable, before the statute accrues." This works as a limited, objective discovery rule. In Klemme, the court held the fact of damage could have been discovered by the time the client hired separate counsel.

Fraud claims

Klemme also noted that a claim for actual fraud falls under § 516.120(5), which runs five years from discovery of the facts constituting the fraud, "at any time within ten years." Breach of fiduciary duty and constructive fraud do not get that extension.

Continuous representation

We did not find a Missouri appellate decision adopting the continuous representation rule for lawyers. Treat it as unsettled, and assume the clock runs even while the lawyer still represents you. We found no separate statute of repose for legal malpractice in Missouri.

Klemme lists the elements of a negligence-based malpractice claim: "(1) an attorney-client relationship; (2) negligence or breach of contract by the defendant; (3) proximate causation of plaintiff's damages; (4) damages to the plaintiff." To win a Missouri legal malpractice case, you must prove an attorney-client relationship, negligence or breach of contract, proximate cause, and damages.

Proximate cause in a litigation case usually means the case within a case: showing you would have done better if the lawyer had handled it properly.

Breach of fiduciary duty

Some claims are about loyalty rather than skill. In Klemme, the client alleged his lawyer placed the interests of other clients ahead of his, a classic conflict of interest. The court held that a breach of fiduciary duty or constructive fraud claim against a lawyer requires "(1) an attorney-client relationship; (2) breach of a fiduciary obligation by the attorney; (3) proximate causation; (4) damages to the client; (5) no other recognized tort encompasses the facts alleged." That fifth element means a claim that is really about careless work will be treated as ordinary negligence. See our conflict of interest page.

Experts

In Roberts v. Sokol, 330 S.W.3d 576 (Mo. App. 2011), the Court of Appeals repeated that "the rule prevails in Missouri that expert testimony is required to show legal malpractice, except in 'clear and palpable cases.'" In Missouri, expert testimony is required to prove legal malpractice except in clear and palpable cases. Plan for an expert witness on the standard of care.

We found no certificate of merit requirement for suits against lawyers. See our expert witness guide.

Missouri follows a strict rule. In Goodman v. Wampler, 407 S.W.3d 96 (Mo. App. 2013), the Court of Appeals affirmed dismissal because the former client did not allege she was actually innocent, "which is an essential element of her legal malpractice claim," and because her claim was barred by collateral estoppel since her convictions had not been set aside. Goodman traced the rule to State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498 (Mo. App. 1985), which called factual innocence an indispensable element. In Missouri, a former criminal defendant suing a defense lawyer must prove actual innocence, and a conviction that has not been set aside bars the claim. See criminal defense malpractice and ineffective assistance vs. legal malpractice.

The Missouri Bar runs a statewide fee arbitration option called the Fee Dispute Resolution Program. It is voluntary and offers facilitation, mediation, and binding arbitration. The client starts the process; lawyers cannot. Someone who paid the fee, or who took on responsibility for paying it, such as a parent, may join the client. The Missouri Bar's Fee Dispute Resolution Program costs nothing for either side, and the average case takes about five months. Volunteer lawyers and non-lawyer professionals serve as neutrals. See our fee arbitration guide.

For theft, the client protection fund is the Missouri Bar Client Security Fund. It does not pay for fee disputes or malpractice. Missouri's fund has tight limits: the lawyer must first be disbarred, suspended, deceased, or adjudicated mentally incapacitated. Missouri Client Security Fund payments are limited to 80% of the loss over $5,000, with a maximum of $50,000 per claim. See how to get money back from a client protection fund.

Anyone who believes a Missouri lawyer acted unethically may file a written complaint with the Office of Chief Disciplinary Counsel in Jefferson City, at (573) 635-7400. The complaint form is on its website. The Missouri Bar lists the most common grounds for discipline as neglect (including failure to communicate and delay), trust account violations, conflicts of interest, and misleading advertising.

A bar grievance can lead to discipline, and in Missouri it matters for another reason: the Client Security Fund generally will not pay unless the lawyer has been disbarred, suspended, or has died or been found incapacitated. But discipline does not pay malpractice damages. A Missouri grievance does not stop the five-year malpractice clock, so file your lawsuit on time while the complaint is pending. See legal malpractice vs. a bar complaint.

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

1. Identify when the harm could first have been discovered, such as a dismissal, a lost deadline, or a new lawyer's review. Count five years.
2. Request your complete client file in writing. See how to get your case file.
3. For billing disputes, start with the Fee Dispute Resolution Program.
4. For theft, file a grievance first, then a Client Security Fund claim.

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 Missouri who handles legal malpractice claims.