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When does a legal malpractice cause of action accrue in Maryland?

For a client to sue his or her former attorney in Maryland for legal malpractice, the client must first have suffered damages.  This usually means that the client must wait until the underlying case is concluded to determine whether in fact the attorney’s malpractice caused the client to suffer damages.

A cause of action “does not accrue until all elements are present, including damages”.  Baker, Watts & Co. v. Miles & Stockbridge 95 Md.App. 145, 187 (1993); Owens-Illinois v. Armstrong 326 Md. 107, 121 (1992) (holding that a cause of action arises “when facts exist to support each element”); Rounds v. Maryland-National Capital Park & Planning Commission 441 Md. 621, 654 (2015) (“For any statute of limitations analysis, the operative date is the date that a claim accrues”).

Damage is a necessary element of a legal malpractice count.  Supik v. Bodie, Nagle, Dolina, Smith & Hobbs, P.A. 152 Md.App. 698, 717 (2003) (legal malpractice requires “duty, breach, causation, and damage”).  “The absence of any one of those elements will defeat a cause of action in tort”.  Id.   Thus, the accrual of a tort claim requires a party “first sustains compensable damages that can be proven with reasonable certainty”.  Edmonds v. Cytology Serv. of Maryland, Inc. 111 Md.App. 233, 270 (1996); Rounds, 441 Md. at p. 654 (holding that a “claim accrues when the plaintiff suffers the actionable harm”).

Maryland courts have uniformly held that the “mere possibility of an injury in a negligence action does not rise to a cause of action”.  Supik v. Bodie, Nagle, Dolina, Smith & Hobbs, P.A. 152 Md.App. 698, 719 (2003); 65 C.J.S. Negligence § 56 at 353 (2000) (“The possibility of injury is not injury itself . . . possibility is insufficient to impose any liability or give rise to a cause of action”) (citing Resavage v. Davies, 199 Md. 479 (1952)).

In professional malpractice cases, there may be a long time interval between the negligent act and the resulting harm.  Edmonds,111 Md.App. at 257 (holding that the injury does not always occur simultaneously with the negligent act).  For a cause of action for professional malpractice to accrue, “there must be not only the negligent act, but a consequential injury, and the injury is the gravamen of the charge”.  Supik, 152 Md.App. at 719 (quoting 65 C.J.S. Negligence § 56 at 352 (2000)).

The rationale that the accrual of a legal malpractice claim requires damages is consistent with the public policy of fostering the attorney-client relationship: “It would be detrimental to the traditional attorney-client relationship to suggest that a client, each time a disagreement arose, should expect to be damaged and be required to consult yet another counsel to review the actions of the attorney earlier retained”.  Supik, 152 Md.App. at 722.

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Article by Stewart A. Sutton featured in the Maryland Bar Journal:
Emotional Distress Damages - Recoverable in Legal Malpractice Actions
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Law Office of Stewart Andrew Sutton, LLC
8 Executive Park Court
Germantown, Maryland 20874
Telephone: 301-916-5000
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