As we have previously reported, effective June 16, 2021, the Ohio legislature enacted R.C. 2305.117 to establish a legal malpractice statute of repose. The statute bars any action upon a legal malpractice claim if the action is not commenced within 4 years after the occurrence of the act or omission that is the basis of the claim. The statute contains only limited exceptions for claims by minors and those of unsound mind. It also provides an additional year for claimants who could not have discovered the injury within three years after the act or omission but discovered the injury within four years.
Since the enactment of the statute questions have been raised about how the statute is to be applied. Nothing in the text of the statute indicates whether the statute applies only to acts or omissions that occur after June 16, 2021, or whether it bars actions filed after June 16, 2021 based on claims arising from acts or omissions that occurred more than four years earlier. If the statute applies only prospectively to acts or omissions occurring after June 16, 2021, the statute of repose would not begin to bar claims until at least 2025. If the statute applies to actions filed after June 16, 2021 arising from acts or omissions that occurred more than four years prior to June 16, 2021, the statute would have immediate effect, but could also be interpreted as applying retroactively.
A subsequent amendment answered this question for a narrow subset of practicing attorneys. Even before the statute’s enactment, efforts were underway in the Ohio House of Representatives to carve out special treatment for attorneys providing opinions of title. House Bill 133, with heavy support from realtors, real estate developers, and the banking industry, became law on September 1, 2021. The bill added a new subsection (D) to R.C. 2305.117 which reads:
(D) An action upon a legal malpractice claim against an attorney or law firm or legal professional association arising from an act or omission related to the attorney’s, law firm’s, or legal professional association’s issuance of an opinion of title issued prior to June 16, 2021, shall be commenced within one year after the cause of action accrued without regard to when the act or omission constituting the alleged basis of the legal malpractice claim occurred.
See, R.C. 2305.117(D). In other words, at least for opinions of title, the statute of repose applies only to opinions of title issued after June 16, 2021.
This amendment suggests that the legislature intended for the statute of repose to have some retroactive effect, as this amendment would arguably have been unnecessary otherwise. Whether a retroactive application of the statute is acceptable to the courts remains to be seen.
We will continue to monitor this issue for further developments. As always, if you have any questions, please contact us. We are here to help.
|Gretchen Mote, Esq
Director of Loss Prevention
Email: [email protected]
|Monica Waller, Esq.
Senior Loss Prevention Counsel
Email: [email protected]