How to sue your lawyer in Montana.

Montana has a statute written specifically for legal malpractice. Mont. Code Ann. § 27-2-206 says an action against a Montana lawyer (or a paralegal or legal intern employed by one) for professional negligence "must be commenced within 3 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the act, error, or omission, whichever occurs last, but in no case may the action be commenced after 10 years from the date of the act, error, or omission."

In Montana, a legal malpractice suit must be filed within three years of discovering the lawyer's error and never more than ten years after the error occurred. That ten-year limit works as a statute of repose.

Discovery of the error, not the damage

Montana's discovery rule is tied to discovering the lawyer's act, error, or omission, and it works together with an accrual rule. In Ehrman v. Kaufman, Vidal, Hileman & Ramlow, PC, 2010 MT 284, the Montana Supreme Court explained that the limitations period "does not begin to run until the negligent act was, or should have been, discovered, and all elements of the legal malpractice claim, including damages, have occurred." That traces to Uhler v. Doak, 268 Mont. 191, 885 P.2d 1297 (1994), which held the clock cannot start before the claim accrues. Actual damages are required; the mere threat of future damages is not enough. In Ehrman, the client's claim did not accrue until a court voided his dock rights agreement and barred him from using the dock.

Ehrman also held that a client's reasonable reliance on a lawyer's advice can excuse late discovery, but only "until the client reasonably believes that he or she is no longer being competently represented." The flip side is Uhler's description of an earlier case where clients were barred because they knew their lawyer "may have 'blown the statute of limitations'" when they complained to the Commission on Practice, more than three years before suing.

No continuous representation rule

In Schneider v. Leaphart, 228 Mont. 483 (1987), the court rejected the continuous representation doctrine as inconsistent with § 27-2-206, noting the statute "does not suspend accrual until the 'attorney-client' relationship has been terminated." Montana has rejected the continuous representation doctrine, so the three-year clock can run while the lawyer still represents you.

In Ereth v. Cascade County, 2003 MT 328, the Montana Supreme Court listed the elements: "first, that the professional owed him a duty of care; second, that the professional breached this duty by a failure to use reasonable care and skill; third, that the plaintiff has suffered an injury; and finally, that the professional's conduct was the proximate cause of the injury." To win a Montana legal malpractice case, you must prove a duty of care, a breach of reasonable care and skill, an injury, and that the lawyer's conduct proximately caused it. In a case about a lost lawsuit, proximate cause usually means the case within a case.

Experts

In Carlson v. Morton, 229 Mont. 234, 745 P.2d 1133 (1987), the client's lawyer announced at trial that he would not call an expert witness. The trial court directed a verdict for the defendant lawyer, reasoning that the charges required expert testimony to show the degree of care expected of an attorney, and that it would be unfair to make lay jurors figure that out alone where reasonable minds could differ. The Montana Supreme Court affirmed. The client had argued that the ethics rules stated the lawyer's duty clearly enough to make an expert unnecessary; that argument failed. In Montana, a legal malpractice plaintiff generally needs an expert to prove the standard of care unless the negligence is obvious to laypeople.

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

Montana has decided the timing question. In Ereth, a former defendant sued the public defender who handled her guilty plea. The court chose the "two-track" approach, following Michigan's Gebhardt decision, and held that "a criminal defendant must file a malpractice complaint within three years of discovering the act, error or omission." The defendant can then ask the court to pause the malpractice suit until the criminal case is resolved. In Montana, a former criminal defendant must file a malpractice suit within three years of discovering the lawyer's error, even while postconviction proceedings are still pending. (Ereth applied the new rule only going forward, so her own claim survived.) We did not find a Montana decision on whether you must also prove actual innocence, so that part is unsettled. See criminal defense malpractice and can you sue a public defender.

The Montana Supreme Court established a fee arbitration program for disputes over "any fees and costs paid, charged, or claimed for professional services by lawyers," run through the State Bar of Montana. You file both an Arbitration Agreement and a Petition for Arbitration. The responding party picks binding arbitration, non-binding arbitration, or no participation. Montana's rules have a feature many states lack. Under Montana's fee arbitration rules, if the lawyer refuses to participate, the arbitration goes forward without the lawyer, and the decision becomes binding unless a lawsuit is filed on the fee dispute. Even a non-binding decision becomes binding 30 days after it is mailed unless someone sues. See our fee arbitration guide.

For theft, the client protection fund is the Montana Lawyers' Fund for Client Protection. It covers mishandling or embezzlement of funds within an attorney-client relationship, not malpractice or negligence. The lawyer must have died, been judged mentally incompetent, been found guilty of a crime arising from dishonest conduct, relinquished practice, or been disbarred or suspended. A claim to the Montana Lawyers' Fund for Client Protection must be filed within three years after you knew or should have known of the lawyer's dishonest conduct. We did not find a published per-claim cap. See how to get money back from a client protection fund.

Grievances against Montana lawyers go to the Office of Disciplinary Counsel (ODC). A grievance must be in writing and explain in detail why you believe the lawyer committed misconduct, with copies (not originals) of supporting documents. Filing is free.

ODC is clear that a bar grievance and a malpractice claim are different. Losing a lawsuit, not meeting a client's expectations, or making an unintentional error in a document may not violate the ethics rules at all, even if it is malpractice, and in that case ODC says the client "should consult with another lawyer about pursuing a claim for malpractice." A Montana grievance can lead to discipline, but it does not pay you damages or pause the three-year malpractice deadline. See legal malpractice vs. a bar complaint.

Montana does not require lawyers to carry malpractice insurance. We could not verify whether Montana requires lawyers to disclose their coverage, so ask the lawyer directly.

1. Write down when you first knew or should have known of the error. Count three years.
2. Write down the date of the error itself. Count ten years. The earlier date controls.
3. Request your complete client file in writing. See how to get your case file.
4. Line up an expert early. Montana courts expect one.

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 Montana who handles legal malpractice claims.