Professional Courtesy?

The Arkansas Supreme Court affirmed the dismissal of a legal malpractice case, holding that the plaintiff (who had retained defendants to pursue a personal injury claim in a truck rollover) failed to allege the essential elements of fraudulent concealment and that the three-year statute of limitations had run.

Plaintiff’s contention

She contends, as she did below, that her attorneys fraudulently concealed their malpractice and therefore prevented her from learning that they had committed malpractice until March 2020. Nichols also asserts that her Attorneys had a duty to speak rather than to remain silent with respect to their malpractice. Stated differently, it is Nichols’s position that, because of the Attorneys’ fraudulent concealment, the statute of limitations was tolled until March 2020—the date that she was informed of the malpractice. According to Nichols, she had three years from March 2020 to bring her malpractice lawsuit against her Attorneys. She therefore contends that she timely filed her malpractice complaint on February 22, 2021.

The court majority

We find Delanno to be dispositive of the present case and hold that Nichols has failed to plead fraudulent concealment. A close review of Nichols’s complaint demonstrates that she failed to allege “something so furtively planned and secretly executed as to keep the plaintiff’s cause of action concealed, or perpetrated in a way that conceals itself.” Delanno, 366 Ark. at 545, 237 S.W.3d at 84 (citing Shelton, 340 Ark. at 96, 8 S.W.3d at 562). Absent fraudulent concealment, the statute of limitations was not tolled until March 2020. Instead, it began to run on January 19, 2018 and expired three years later on January 19, 2021. On this basis, Nichols’s February 2021 malpractice complaint was untimely filed. Accordingly, the circuit court did not abuse its discretion in dismissing her untimely filed malpractice complaint.

SHAWN A. WOMACK, Justice, dissenting.

We have an opportunity to hold attorneys to the same standard as other fiduciary and confidential relationships. Yet we extend protection and favoritism to our own profession, while rightly withholding it from others. Unlike the majority, I would hold that Rebecca Nichols pled sufficient facts to establish fraudulent concealment because silence amounts to a positive act of fraud when there is a confidential or fiduciary relationship.

“A fiduciary relationship exists between attorney and client, and the confidence which the relationship begets between the parties makes it necessary for the attorney to act in utmost good faith.” An attorney “must not only not misrepresent any fact to his client, but there must be an entire absence of concealment or suppression of any facts within his knowledge which might influence the client, and the burden of establishing the fairness of the transaction is upon the attorney.

When such a relationship exists, the duty to speak arises.

Here

As Chief Judge Brandon Harrison presciently warned below, “Surely a client is not required to maintain a double layer of lawyers to ensure that the fiduciary responsibilities of the primary lawyer are being honored. (And is a third lawyer needed to ensure the second lawyer properly monitors the first one? And so on.” I share these concerns and worry that the majority has authored a playbook for attorneys to escape liability, cutting off innocent and unsuspecting clients from any chance at compensation they may be due. I have no opinion on the merits of Nichols’s malpractice claim; that is for a jury to decide. But because of today’s decision, Nichols will never have that opportunity.

I respectfully dissent.

WOOD and WEBB, JJ., join.