Lawyer Malpractice for Failure to File Claim Within the Statute of Limitations Argument
In Ortiz v. Barrett, 222 Va. 118, 278 S.E.2d 833 (1981) a plaintiff sought to hold local counsel liable for malpractice after the primary, foreign counsel failed to file a proper claim within the statute of limitations period.
The court granted local counsel's motion for summary judgment, finding that his duty was limited to exercising care in the tasks he had been employed for and that his liability should be limited to the same extent as his duty. Id. at 838.
The court in Ortiz found compelling that the foreign and local counsel had an agreement that foreign counsel would conduct the case "without active participation" by local counsel. Id.
It also considered persuasive the trial court's conclusion that local counsel had been used in that case merely as a means of gaining access to the Virginia court, and that local counsel had been paid a "nominal fee" of $750 in exchange for essentially reviewing pleadings for compatibility with Virginia law. Id.
Notably, the court agreed with a statement by an expert that, "local counsel could not with propriety ignore the interests of the clients, even if he did not know them," finding that local counsel had not ignored the interests of the clients but in fact had exerted himself to the extent he could since he had recommended a different course of action to primary counsel who decided to act contrary to his advice. Id. at 840.