Statute of Limitations in the State of Arizona
The statute of limitations for a claim against an attorney for negligence (usually referred to as “legal malpractice”) or for breach of fiduciary duty is two years. A.R.S. § 12-542. For the rare case of fraud against an attorney, the statute is three years. A.R.S. § 12-543. While the statute of limitations for breach of contract is longer (see A.R.S. § 12-548), an attorney who has committed potential malpractice cannot be sued for breach of contract in all but the very rarest circumstances, so we will not address breach of contract here.
The two year deadline (or for fraud, three year deadline) begins to run when the client knew or through the exercise of reasonable diligence, should have known, of the attorney’s misconduct. Gust Rosenfeld v. Prudential Insurance, 182 Ariz. 586, 588, 898 P.2d 964, 966 (Ariz. 1995).
The way in which this standard is applied varies, depending on the type of case in which the malpractice occurred.
In the non litigation context, the Arizona Court of Appeals for Division One (covering Maricopa County and Northern Arizona) holds that the statute begins to run when the client learns of any damages, even if only a small amount of damages have occurred and most of the damages occur later. Commercial Union Insurance v. Lewis & Roca, 183 Ariz. 250, 252, 902 P.2d 1354 (App. 1995).
The Arizona Court of Appeals for Division Two (covering Pima County and Southern Arizona) holds the opposite: in a non litigation context, the statute does not begin to run until the client has a clear understanding of the full extent of their damages. Myers v. Wood, 850 P.2d 672, 174 Ariz. 434 (App. 1993).
There seems to be general agreement among the divisions that in the non litigation context, filing a separate lawsuit which may affect the total amount of damages suffered because of the malpractice (usually, suing to recover a portion of what was lost due to the malpractice from someone other than the malpracticing attorney) does not act to toll or delay the statute of limitations. Keonjian v. Olcott, 216 Ariz. 563, 169 P.3d 927 (App. 2007).
In the civil litigation context (generally, a suit for money damages), the statute of limitations does not begin to run until the appellate process is completed or waived by a failure to appeal. Amfac Dist. Corp. v. Miller, 138 Ariz. 152, 673 P.2d 792 (Ariz. 1983). In other words, even if the client discovers the malpractice more than two years before filing a legal malpractice lawsuit, the statute is not triggered until the litigation in which the malpractice occurred is concluded. This relieves the client from the insupportable burden of having to sue their own attorney while the litigation in which the attorney is representing them is still going on.
In the criminal litigation context, the statute begins to run when the criminal conviction which arose from the negligence is lawfully vacated, either in the original proceeding or a subsequent proceeding for post conviction relief. Glaze v. Larsen, 83 P.3d 26, 207 Ariz. 26, 30 (Ariz. 2004).
As a final matter, the running of the statute of limitations may be delayed if the plaintiff can present evidence that the defendant concealed the malpractice, thereby preventing the plaintiff from timely filing a claim. Ulibarri v. Gerstenberger, 178 Ariz. 151, 871 P.2d 698 (App. 1993).