Equitable Tolling In Legal Malpractice Cases
In Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991), the Texas Supreme Court announced an equitable tolling rule in legal malpractice cases, which provides:
When an attorney commits malpractice in the prosecution or defense of a claim that results in litigation, the statute of limitations on the malpractice claim against the attorney is tolled during the pendency of the underlying litigation. Hughes, 821 S.W.2d at 157.
This rule is based on the rationale that when an attorney commits malpractice while representing a client in litigation, the client can be put in the difficult position of "adopting inherently inconsistent litigation postures in the underlying case and in the malpractice case." Hughes, 821 S.W.2d at 156.
In Murphy v. Campbell, 964 S.W.2d 265 (Tex. 1997), the supreme court explained that the Hughes tolling rule does not toll limitations only when a litigant might be forced to take inconsistent positions. See id. at 272. the court stated:
We expressly limited the rule in Hughes to attorney malpractice in the prosecution or defense of a claim that results in litigation.
In such circumstances, to require the client to file a malpractice claim against the lawyer representing him in another case would necessarily make it virtually impossible for the lawyer to continue his representation.
The client's only alternative would be to obtain other counsel.
That consideration, coupled with the necessity of taking inconsistent positions, persuaded us to adopt a tolling rule in Hughes . . . .Id.
In Swift v. Seidler, 988 S.W.2d 860 (Tex. App.-San Antonio 1999, pet. denied), the San Antonio Court of Appeals followed the rule stated in Murphy.
In Swift, David Swift employed Seidler to file for bankruptcy on Swift's behalf, but the petition for discharge was denied in January 1991. See id. at 861.
In March 1992, Swift fired Seidler and hired other counsel. the denial of the bankruptcy petition was affirmed by the Fifth Circuit on October 8, 1993.
On October 6, 1995, Swift filed the malpractice case against Seidler that was at issue before the San Antonio court.
The San Antonio court noted that Murphy restricted the Hughes rule to situations where filing a malpractice action would require a party to obtain other counsel for the underlying litigation. See Swift, 988 S.W.2d at 862 (citing Murphy, 964 S.W.2d at 272).
Because Seidler did not continue to represent Swift in the underlying litigation, the Hughes rule did not apply, and limitations was not tolled until all appeals of the underlying litigation were exhausted. See Swift, 988 S.W.2d at 862.
In Norman v. Yzaguirre & Chapa, 988 S.W.2d 460 (Tex. App.-Corpus Christi 1999, no pet.), the Corpus Christi Court of Appeals also followed Murphy.
In Norman, the attorneys failed to respond to requests for admissions. See id. at 460. As a result, summary judgment was granted against Michael Norman based on deemed admissions.
In April 1994, Norman fired his attorneys and hired new counsel to pursue the appeals, which were exhausted on March 21, 1996. the malpractice suit was filed on February 14, 1997.
The court held that under Murphy, limitations began to run on Norman's malpractice claim in April 1994, because Norman was then no longer in a position where filing a malpractice case against the original attorney would force him to seek new counsel for the underlying case. See id. at 463.