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When is missing a filing deadline not legal malpractice?

For an attorney, missing the legal claim filing deadline imposed by an applicable statute of limitations is an easy way not only to jeopardize the client's case but also to find himself involved in another lawsuit -- this one as a defendant in a legal malpractice action. If the circumstances of missing a filing deadline indicate negligence or inattentiveness on the part of the lawyer, New Jersey courts can be harsh in holding him to account.

But what if the reason why the attorney missed a filing deadline was due to illness? Is that an extenuating circumstance that would not only allow for more time to file, but also avoid the risk of a malpractice claim? That is the question that a New Jersey appeals court recently considered when an attorney failed to timely file his client's lawsuit because of a recurrence of cancer that eventually killed him.

The client had retained the attorney in September of 2013, with the deadline for filing his lawsuit being in November of the same year. In October the attorney discovered that he had lung cancer, and during his ultimately unsuccessful treatment missed the November filing deadline, informing the client of his inability to continue his representation of the client in December of 2013. The client retained new counsel who filed the notice of claim the same month with a motion to extend the filing deadline based on the previous attorney's illness, but the trial court denied the motion as well as a motion to reconsider.

The appeals court reversed the trial court, finding that the attorney's illness constituted an extraordinary situation, and remanded the matter for reconsideration by the motion judge.

The onset of a serious illness may be one way for an attorney to excuse missing a filing deadline, but the absence of such an extenuating circumstance will make it more likely that a court will be unsympathetic to a failure to adhere to legal suspense dates. In such an occurrence, the client may be left with no recourse but to pursue a legal malpractice claim if the reason for the failure was ignorance, inattentiveness, inadvertence or negligence.

Source: New Jersey Law Journal, "Lawyer was Sick, not Inattentive, Court Says," David Gialanella, May 19, 2015

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