The Florida legal malpractice statute of limitations gives you two years to sue your attorney, but that clock does not necessarily start on the day the mistake was made. It starts when you discover the malpractice, or when a reasonably attentive person in your position should have discovered it. Figuring out that start date is usually the hardest part of the analysis, and in litigation cases it can push the deadline out considerably.
The Two-Year Rule
Florida Statute 95.11 sets a two-year limitations period for professional malpractice claims, including claims against attorneys.1Florida Senate. Florida Code 95.11 – Limitations Other Than for the Recovery of Real Property Miss it, and the court will almost certainly dismiss the case no matter how strong the underlying facts are. Two years sounds generous. The real question is always when those two years begin.
Under the general accrual rule, a cause of action accrues when “the last element constituting the cause of action occurs.”2Online Sunshine. Florida Code 95.031 – Computation of Time In a malpractice case, the last element is the harm. Because that harm often does not surface for months or years, Florida applies a discovery rule that shifts the trigger date.
When the Clock Starts
The two years run from the moment you discover the malpractice, or from the moment you reasonably should have. The idea is simple: your deadline should not expire before you had any reason to suspect something went wrong. How discovery gets defined depends on whether the underlying work was a lawsuit or a transaction, and Florida treats those two situations very differently.
Malpractice During a Lawsuit
When the alleged error happened inside a lawsuit, the Florida Supreme Court’s decision in Silvestrone v. Edell controls. The two-year period does not begin until the judgment in the underlying case becomes final. That means the clock starts either when the time to appeal expires or, if an appeal is taken, when the appeal is decided and any rehearing motions are resolved.3Justia. Silvestrone v Edell
The reasoning is practical. Until the underlying case reaches a final resolution, you often cannot tell whether the error cost you anything. A trial mistake might be fixed on appeal. A ruling that looks fatal might be reversed. The harm only crystallizes once the legal process runs its course, so the limitations period waits for that finality.
Malpractice in a Transaction
Transactional malpractice has no equivalent bright-line trigger. Discovery might happen when a second attorney reviews a flawed contract, when a title defect surfaces during a property sale, or when a government agency rejects a filing your lawyer prepared. The trigger is whenever the problem becomes apparent, or whenever reasonable diligence would have revealed it.
The “should have discovered” half of the standard matters. Courts will not let you claim ignorance if the red flags were obvious. If your business partner points out a critical missing clause in a contract your attorney drafted, the clock likely starts at that conversation, not months later when you finally consult another lawyer. The standard is a reasonably attentive person in your situation.
Continuing Representation Pauses the Clock
Florida courts recognize the continuing representation doctrine, which tolls the statute of limitations for as long as the attorney who made the mistake continues to represent you on the same matter. Clients should not have to sue their current lawyer mid-case just to preserve their rights against them.
This matters most when an attorney handles a case over several years and makes an error early on. Without the doctrine, the two-year window could close while the lawyer is still working on the very engagement where the mistake occurred. Once representation on that matter ends, the clock starts.
Tolling: When a Running Clock Pauses
Tolling is separate from the discovery rule. The discovery rule decides when the clock starts. Tolling stops a clock that is already running. Florida Statute 95.051 lists the specific circumstances that qualify, and the list is exclusive: disabilities and situations not named in the statute do not pause the deadline.4Online Sunshine. Florida Code 95.051 – When Limitations Tolled
Fraudulent Concealment
If your attorney committed malpractice and then actively hid it, the limitations period may be tolled until the concealment is uncovered. A classic example is a lawyer who misses a filing deadline and then fabricates documents to make the filing look timely.
This requires proof of affirmative deception. Simply failing to mention an error is generally not enough. There is a meaningful difference between an attorney who does not volunteer that a deadline was missed and one who creates a fake filing confirmation to cover it up. Courts want evidence of deliberate steps taken to keep you from finding out.
Absence, False Names, and Concealed Whereabouts
Section 95.051 also pauses the clock when the person you need to sue leaves Florida, operates under a name unknown to you, or hides within the state so that process cannot be served. These provisions do not apply if service of process (or service by publication) can be accomplished in another way sufficient to give the court jurisdiction.4Online Sunshine. Florida Code 95.051 – When Limitations Tolled In legal malpractice cases these situations are rare, since attorneys are licensed professionals with contact information on file with the Florida Bar.
Incapacity
If you were adjudicated incapacitated before the cause of action accrued, the limitations period is tolled. The claim must still be brought within seven years of the act that gave rise to it.4Online Sunshine. Florida Code 95.051 – When Limitations Tolled
A Bar Complaint Does Not Extend the Deadline
Filing a grievance with the Florida Bar and filing a civil malpractice lawsuit are separate processes. A Bar grievance is a disciplinary complaint that can lead to sanctions against the lawyer, up to suspension or disbarment. It does not put money in your pocket. A malpractice lawsuit is a civil action for financial compensation.
The deadlines are also different. The Bar’s rules give you six years from discovery to file a grievance, well beyond the two-year civil deadline.1Florida Senate. Florida Code 95.11 – Limitations Other Than for the Recovery of Real Property Filing a grievance does not toll, extend, or otherwise affect the two-year malpractice deadline. Spending three years working through the Bar’s process before deciding to sue almost always means the civil claim is gone. If both routes interest you, protect the two-year deadline first; the Bar complaint can follow within its own longer window.