Knopick v. Connelly, U.S.D.C., M.D. Pa., January 25, 2010.
Facts: Knopick retained the services of the Defendant attorney in or about March 2007 order to pursue a claim for legal malpractice against his former attorneys in a divorce proceeding. The Defendant attorney, however, refused to pursue the action and advised that Knopick statute of limitations for the legal malpractice action had expired.
In July, 2009, Knopick sued the Defendant attorney for malpractice, under tort and contract theories of liability, for failing to pursue the malpractice action his former divorce attorney. The Defendant attorney moved for summary judgment.
Issue: Could Knopick establish a prima facie case against the Defendant attorney under either the tort or contract theory of liability?
The Court first noted that under a tort theory of liability, Plaintiff must show:
1) The employment of the attorney or other basis for duty;
2) The failure of the attorney to exercise ordinary skill and knowledge; and
3) That such failure was the proximate cause of the damage to the plaintiff.
Here, the Court found that the Defendant attorney’s analysis that Knopick was out of time to pursue a malpractice action against his divorce attorney was correct. Knopick should have brought the malpractice action two years from the date he first became aware of the negligence – by August, 2006. However, he had no even retained Defendant’s services until March, 2007. Accordingly, there was no failure on Defendant’s part to exercise ordinary skill or knowledge.
With regard to Plaintiff’s contract theory of liability, the Court noted that "a plaintiff may not couch a tort negligence claim as a contract claim simply to side-step the two-year limitation period." The Court further provided:
Plaintiff discusses the standard of care owed by an attorney, not a breach of specific terms of the contingent fee agreement…Merely reciting the language "specific terms of the contract" without citing which terms the parties breached, is insufficient…In addition, the implied duty of care owed by every attorney to their clients is insufficient to support a breach of contract claim…Further evidence that this is a negligence claim couched as a breach of contract claim, is the fact that the language contained in Count Three directly mirrors the language contained in Count Two-Plaintiff’s legal malpractice tort claim.
Accordingly, the Court dismissed Plaintiff’s complaint.
Lesson: When an attorney is retained after the applicable statute of limitations has expired, he is not negligent in failing to pursue that action. Moreover, plaintiff cannot pursue a contract theory of liability to avoid the two year statute of limitations applicable in Pennsylvania to legal malpractice actions. To pursue a contract theory of liability, plaintiff must be able to point to a specific provision of the retainer that was violated other than an attorney "implied duty of care."