Prevention of a blown statute of limitation starts at the intake

What is your worst nightmare as a lawyer? Surely a blown statute of limitations is at or near the top of the list. Prevention is key and prevention starts at the intake.

The firm’s Prospective Client Questionnaire should ask for the date of the accident or occurrence (a breach of contract, for example) that is the basis of the client’s claim. The Questionnaire should specify that (1) completion of the Questionnaire does not result in the formation of an attorney-client relationship and (2) an attorney-client relationship is formed only when the client and the firm signed an engagement agreement. This procedure gives the firm time to check for conflicts of interest and determine if the claim is barred by the applicable statute of limitations. If the accident or occurrence took place in another jurisdiction, the application of that jurisdiction’s laws must be analyzed as part of the decision whether to take the case.

An analysis of the foreseeable jurisdictions whose law could control the matter is recommended. See Eadie v. Krause, 381 S.C. 55, 671 S.E.2d 389 (Ct. App. 2008) (affirming trial court’s decision to grant summary judgment for defendant attorney because it was not foreseeable that attorney’s decision to pursue worker’s compensation claim in South Carolina would be treated by the Tennessee Supreme Court as a binding election of remedies barring a claim for worker’s compensation in Tennessee). 

I deal with this issue and more in my Ethics Watch of January. Nathan Crystal, “Blow Statutes – What to Do?”, 12 SC Lawyer, January 2021