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Sharts v. Natelson6/30/1993
to promote such premature suits.
The reliance of the lead opinion on three other New Mexico decisions is misplaced. , is a Court of Appeals decision that predates Jaramillo; it certainly cannot be read as limiting Jaramillo. , is a Court of Appeals decision that appears to have no relevance to the issues in this appeal; it discusses the standard of care, not the statute of limitations. As for , the Supreme Court simply held that the limitations period under New Mexico's Tort Claims Act had expired because the very last possible date that one might argue was the date of loss was a date more than two years before the claim was filed. The holding in Aragon & McCoy on this point is that the limitations period certainly begins before an appellate court ruling on the issue. This holding appears inconsistent with the statement of law in the lead opinion. If, as the lead opinion states, harm does not occur until legal rights are settled, I would think that no harm occurs until the final appellate decision.
B. The Predicate-Litigation Rule
On the issue of harm there remains for Discussion only those decisions in other jurisdictions which at first glance may appear to support the approach of the lead opinion. Some courts have stated in certain circumstances that a cause of action for attorney malpractice did not accrue until the termination of related litigation. See, e.g., Laird v. Blacker, 2 Cal. 4th 606, 828 P.2d 691 (Cal. 1992) (en banc). This rule properly applies only when the related litigation is the litigation in which the alleged malpractice was committed, which I shall term the "predicate litigation." Thus, I would call the rule the "predicate-litigation rule." It may make sense to say that no harm or damage has occurred until the predicate litigation has been concluded. Every attorney makes some mistakes during litigation and some of those mistakes may well be malpractice, but often the result is not affected by the error. For example, a party may win a lawsuit despite incompetent cross-examination conducted by the party's attorney.
The following passages from 2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice ยง 18.11 (3d ed. 1989), explain that the time at which harm occurs does not depend on the outcome of litigation unless the alleged malpractice was committed during the litigation.
right or a remedy is usually lost, or a liability is imposed at the time of a lawyer's error even though a court does not so declare until a later date. Although the unpredictability in resolution through the judicial process may excuse discovery of the injury , such a determination of rights and liability does not "create" the damage. For example, an injury to title exists when the lawyer erred, even though the client seeks to litigate what ultimately proves to be a meritorious claim of the adverse party.
Id. at 108 (footnotes omitted).
The date of injury is when the right is lost or the liability is imposed. For example, a California lawyer was sued for an error in 1974 in preparing a marital property settlement agreement which failed to protect his client's interest in her former husband's military pension. Although the client claimed that she did not sustain any damage until 1979 when her former spouse's right to receive the pension vested, the court held that whatever right she had was lost in 1974, regardless of the contingent nature of that interest. Similarly, a Georgia decision held that an unfavorable property separation agreement caused damage when it was signed as a binding obligation, not when it was later incorporated into the divorce decree.
Id. at 109 (footnotes omitted).
A situation
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