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2022 Regular Session
SENATE BILL NO. 103
BY SENATOR FOIL
MALPRACTICE. Provides relative to legal malpractice. (7/1/22)
1 AN ACT
2 To amend and reenact R.S. 9:5605(A) and (B), and to enact R.S. 9:5605.2, relative to legal
3 malpractice; to provide relative to filing time periods; to provide relative to the
4 burden of proof; to provide relative to collectability of damages; and to provide for
5 related matters.
6 Be it enacted by the Legislature of Louisiana:
7 Section 1. R.S. 9:5605(A) and (B) are hereby amended and reenacted and R.S.
8 9:5605.2 is hereby enacted to read as follows:
9 §5605. Actions for legal malpractice
10 A.(1) No action for damages against any attorney at law duly admitted to
11 practice in this state, any partnership of such attorneys at law, or any professional
12 corporation, company, organization, association, enterprise, or other commercial
13 business or professional combination authorized by the laws of this state to engage
14 in the practice of law, whether based upon tort, or breach of contract, or otherwise,
15 arising out of an engagement to provide legal services shall be brought unless filed
16 in a court of competent jurisdiction and proper venue within one year from the date
17 of the alleged act, omission, error, or neglect, or within one year from the date that
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions. SB NO. 103
SLS 22RS-238 ENGROSSED
1 the alleged act, omission, or neglect is discovered or should have been discovered;
2 however, even as to actions filed within one year from the date of such discovery,
3 in all events such actions shall be filed at the latest within three years from the date
4 of the alleged act, omission, error, or neglect.
5 (2) In addition to any other requirement in this Section, if an action for
6 damages against an attorney at law duly admitted to practice in this state is filed
7 in a court of competent jurisdiction in this state, and that action is found to be
8 timely under this Subsection, then the party bringing the action for damages
9 shall prove, by a preponderance of the evidence:
10 (a) The engagement to provide legal services would have resulted in a
11 collectable monetary award.
12 (b) The value of the monetary award in the absence of the occurrence of
13 the alleged act, omission, error, or neglect by the attorney at law.
14 B. The provisions of this Section are remedial and apply to all causes of
15 action without regard to the date when the alleged act, omission, or neglect occurred.
16 However, with respect to any alleged act, omission, error, or neglect occurring prior
17 to September 7, 1990, actions must, in all events, be filed in a court of competent
18 jurisdiction and proper venue on or before September 7, 1993, without regard to the
19 date of discovery of the alleged act, omission, error, or neglect. The one-year and
20 three-year periods of limitation provided in Subsection A of this Section are
21 peremptive periods within the meaning of Civil Code Article 3458 and, in
22 accordance with Civil Code Article 3461, may not be renounced, interrupted, or
23 suspended.
24 * * *
25 §5605.2. Collectability rule
26 In any action for damages by a client against an attorney, the client's
27 recovery against the attorney shall be limited to the amount of damages which
28 the attorney shows by a preponderance of the evidence would have been the
29 maximum amount of damages that the client could have collected in the client's
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions. SB NO. 103
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1 underlying action in which he was represented by the attorney.
2 Section 2. The provisions of this Act are intended to legislatively overrule the
3 holding that collectability of damages against the tortfeaser in an underlying lawsuit is not
4 an affirmative defense to a legal malpractice action, as held in the Louisiana Supreme Court
5 decision, Ewing v. Westport Ins. Co., 315 So.3d 175 (La. 2020).
6 Section 3. This Act shall become effective on July 1, 2022.
The original instrument was drafted by Whitney Kauffeld. The following
digest, which constitutes no part of the legislative instrument, was prepared
by Lebra Bias.
DIGEST
SB 103 Engrossed 2022 Regular Session Foil
Present law provides for the time limitations for filing a legal malpractice claim.
Proposed law retains present law and provides an additional burden on the plaintiff to prove
by a preponderance of evidence: (1) that the representation by the attorney would have
concluded in a collectable monetary award amount and (2) the value of that collectable
award amount had the attorney not committed the alleged malpractice.
Proposed law provides that the client's recovery against the attorney is limited to the amount
that would have been awarded in the client's underlying claim in which the client was
represented by the attorney.
Effective July 1, 2022.
(Amends R.S. 9:5605(A) and (B); adds R.S. 9:5605.2)
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Judiciary A to the
original bill
1. Makes technical changes.
2. Limits collectability of damages to the amount that would have been awarded
in the client's underlying claim in which the client was represented by the
attorney.
3. Changes effective date from August 1, 2022, to July 1, 2022.
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.