Lawyers Malpractice Suit - Limitations Period If He Still Represents the Client
In Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991), the Supreme Court held that "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 until all appeals on the underlying claim are exhausted." Id. at 157.
The Hughes rule seeks to avoid the harsh results that the legal injury and discovery rules can create.
These rules may force a client to bring suit against an attorney when the client discovers the injury regardless of whether the attorney is still prosecuting or defending the client's claim. 821 S.W.2d at 156-157.
The result when the attorney is still prosecuting the client's underlying claim is that the client is forced to assert "inherently inconsistent litigation postures," arguing the propriety of counsel's actions in the underlying suit and impropriety in the malpractice suit. Id.
Thus, the Hughes Court concluded that the limitations period should be tolled for the second cause of action "because the viability of the second cause of action depends on the outcome of the first." Id. at 157.