How to sue your lawyer in Pennsylvania.

Pennsylvania lets a malpractice plaintiff sue in negligence (called trespass) and in contract (assumpsit), and each has its own statute of limitations. The Superior Court confirmed in Wachovia Bank, N.A. v. Ferretti (2007) that the two-year period applies to the negligence claim and the four-year period to the breach of contract claim.

• Negligence: 42 Pa.C.S. § 5524(7), two years for actions founded on negligent or otherwise tortious conduct.
• Contract: 42 Pa.C.S. § 5525(a), four years. In Bailey v. Tucker (1993) the Pennsylvania Supreme Court recognized that malpractice actions can sound in contract. Whether your facts support a true contract claim is often contested, so plan around the two-year date.

The occurrence rule

In Pennsylvania, the statute of limitations for legal malpractice starts on the date of the lawyer's breach of duty, not the date you suffer actual loss. In Wachovia v. Ferretti, the court rejected the argument that the clock waits for a final judgment against the client. The exception is the equitable discovery rule, which applies only when the injured client could not, despite due diligence, know of the injury or its cause. Fraudulent concealment by the lawyer can also toll the period.

No continuous representation rule

In Clark v. Stover (December 2020), the Pennsylvania Supreme Court refused to adopt the continuous representation rule, reasoning that statutes of limitations are legislative in character. In Pennsylvania, the malpractice clock keeps running even while the same lawyer is still handling your matter. That is the trap: if your lawyer misses a deadline and keeps working for you for two more years, the negligence claim may be gone. Pennsylvania has no separate statute of repose for lawyers. Compare states on our statute of limitations page, and see my lawyer missed a deadline, what now.

The Pennsylvania Supreme Court restated the elements in Kituskie v. Corbman (1998): (1) employment of the attorney or another basis for a duty, (2) the attorney's failure to exercise ordinary skill and knowledge, and (3) that the negligence was the proximate cause of damage to you. In a litigation case, proving damage means the case within a case: showing you would have won or done better. Losing alone is not malpractice (see what is not legal malpractice).

Collectibility

Kituskie also held that collectibility of the underlying judgment matters. In Pennsylvania, the lawyer being sued bears the burden of proving that a judgment in the underlying case would not have been collectible. That is friendlier to clients than the majority rule in other states.

Certificate of merit

Pa.R.C.P. 1042.1 defines "licensed professional" to include an attorney at law, so the certificate of merit rule applies to legal malpractice. Under Pa.R.C.P. 1042.3, the plaintiff must file a certificate of merit with the complaint or within 60 days after filing it. The certificate usually states that an appropriate licensed professional has supplied a written statement that there is a reasonable probability the lawyer's work fell outside acceptable professional standards. The rule also allows a certificate stating that expert testimony is unnecessary for the claim, though that choice limits you later. Missing it can lead to a judgment of non pros under Rule 1042.6, which ends the case.

Expert testimony

Expert testimony is the general rule when the standard of care is beyond an average person's knowledge. In Rizzo v. Haines (1989), though, the Supreme Court held that failing to investigate and tell a client about settlement offers did not require an expert witness, and neither did a lawyer's fiduciary duties in financial dealings with a client. See our expert witness guide.

Pennsylvania is one of the hardest states for these claims. In Bailey v. Tucker (1993), the Supreme Court set special elements for negligence (trespass) claims against criminal defense lawyers, including reckless or wanton disregard of the client's interest, not ordinary negligence. Under Bailey v. Tucker, a former criminal defendant in Pennsylvania must pursue post-trial remedies and obtain relief based on attorney error, and must prove by a preponderance of the evidence that he did not commit the crimes charged or any lesser included offenses.

The deadline does not wait for exoneration. The court held that the limitations period starts, in the typical case, when the attorney-client relationship ends, and that a suit filed before post-conviction relief is complete can be handled procedurally. That means you may need to file the malpractice case while your actual innocence fight is still underway. See criminal defense malpractice.

The Disciplinary Board says fee disputes are not normally handled in the discipline process and should be taken to your county bar association. County programs vary. The Philadelphia Bar Association's Client-Lawyer Fee Dispute Resolution Program, for example, offers free, confidential mediation and fee arbitration; you file a petition and consent forms, and the bar asks the lawyer to take part. Participation is voluntary for both sides. Our fee arbitration guide explains how to prepare.

For theft, the client protection fund is the Pennsylvania Lawyers Fund for Client Security. The Pennsylvania Lawyers Fund for Client Security has a maximum award of $150,000 per claimant and a $1,000,000 aggregate cap per attorney. Awards are discretionary, there is no filing fee, and the fund pays for dishonest conduct, not malpractice or fee disputes. See how to get money back from a client protection fund.

Pennsylvania does not require malpractice insurance, but lawyers must report whether they are insured on their annual fee form, and a private-practice lawyer without at least $100,000 per claim and $300,000 per year in coverage must tell clients in writing. The Disciplinary Board's attorney search shows each lawyer's insurance status.

Complaints about Pennsylvania lawyers go to the Office of Disciplinary Counsel of the Disciplinary Board of the Supreme Court of Pennsylvania. You can file online or mail a printed form to the right district office; forms are available in several languages. You will get an acknowledgment and a file number.

The Board says it cannot give legal help, direct your lawyer, represent you, refer you to a lawyer, or pay you money through the complaint process. A bar grievance runs on its own track and does not stop the two-year malpractice clock. Read legal malpractice vs. a bar complaint.

1. Date the mistake, not the loss. Pennsylvania's clock usually starts when the lawyer erred.
2. Do not wait for the lawyer to fix it. There is no continuous representation rule to protect you.
3. Budget for an expert early. You need a certificate of merit within 60 days of filing.
4. Get your file (here is how) and check the lawyer's insurance status on the Disciplinary Board site.

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 Pennsylvania who handles legal malpractice claims.