Comment by Jennifer Thornton
In response to the dramatic increase in legal malpractice litigation within the past fifteen years, the Louisiana Legislature, like many other state legislatures, passed a special statute of limitation for legal malpractice claims. This statute, Louisiana Revised Statute section 9:5605, provides peremptive periods in which all legal malpractice claims must be filed against an attorney. While a single statute is useful in eliminating much of the confusion over categorizing malpractice claims and applying different limitation periods for tort and breach of contract claims, the peremptive nature of the limitation periods raises several concerns. One concern is that the legislature has applied the doctrine of peremption, which is usually applied only in areas of public law, to an area of private tort law. Further, because the limitation periods are peremptive in nature, they cannot be interrupted or suspended by equitable civil law concepts like contra non valentem or continuous representation. Consequently, the statute may unconstitutionally restrict plaintiffs' rights to seek legal remedies in Louisiana courts. These problems, however, could be resolved by suspending the peremptive period during the attorney's representation of a client. This solution would more closely realign the statute with Louisiana's equitable tradition of liberal prescriptive period, while serving the purpose of the statute.
About the Author
Jennifer Thornton. J.D. candidate 2000, Tulane University School of Law; M.A. 1997, Georgia State University; B.A. 1995, Tulane University.
Citation
74 Tul. L. Rev. 659 (1999)