Blog Post | 114 KY. L. J. ONLINE | November 20, 2025
All Quiet on the Eastern Front: Legal Malpractice, Tolling, and the Systemic Barriers Facing Eastern Kentuckians
By: Jason Marcus, Staff Editor, Vol. 114
“At that time I thought he’s helping me, I hit rock bottom, lost everything I had….”[1]
“There was [sic.] three investigations happening at once, bad judges, bad lawyers, bad doctors.”[2]
These words capture the despair of clients who trusted their attorney only to discover that justice had quietly expired on a procedural clock they never knew existed, and on a fraud scheme they never knew was happening. Their stories are not isolated. Across the Commonwealth, and particularly in Eastern Kentucky, clients are losing access to justice because their lawyers fail to tell them when, or whether time can be paused, what the legal system is and means, and how their case can proceed.[3] With no real disciplinary proceedings or statutory bars in place, Kentucky should affirm that failing to inform a client of reasonably apparent tolling constitutes legal malpractice, reasserting the Commonwealth’s commitment to fairness, accountability, and access to justice.[4]
Malpractice claims often turn on when the statute of limitations runs and whether the client knew, or reasonably should have known, of a tolling doctrine.[5] Yet, in Kentucky, it has not clearly been articulated whether attorneys have an affirmative duty to inform clients about tolling opportunities.[6] This omission leaves clients vulnerable and contradicts the core principles of professional responsibility. Kentucky courts and legislators should clarify that a lawyer’s failure to inform a client of reasonably apparent tolling statutes constitutes malpractice, especially given the barriers facing Eastern Kentuckians[7] who rely on their attorneys for basic procedural guidance.
Determining when a legal malpractice claim accrues can be surprisingly complex. Courts use four different theories: the occurrence rule, damage rule, discovery rule, and continuous representation rule.[8] Each determines when the “clock” begins to run, and some doctrines, such as continuous representation, can toll the limitations period until the attorney-client relationship formally ends.[9] Yet, the average client cannot, and should not, be expected to know which rule applies or whether tolling exists at all.[10] In practice, lawyers control the flow of this information.[11] When a lawyer fails to disclose that tolling might extend a filing deadline, the client’s claim can die without a chance to be heard.[12] This silence is not benign neglect; it is professional failure with profound human consequences.[13]
So, what is at least required of a lawyer? They must, to a reasonable extent, “consult with [their] client about the means by which [their] client’s objectives are to be accomplished” and “explain a matter to the extent reasonably necessary to permit [their] client to make informed decisions” in relation to their representation by their attorney.[14] This stresses that there is at least some expectation in the form of communication between the client and their lawyer as being necessary for an individual to actively participate in their representation.[15] Commonsense even points one to recognize that a client cannot “participate” in decisions about litigation strategy or settlement if they are unaware that time remains, or could remain, to pursue relief. Kentucky’s rules on duties to prospective clients reinforce this expectation. Even before formal representation begins, lawyers must not use or reveal information that could be “significantly harmful” to a prospective client.[16] Failing to disclose critical timing information is arguably the functional equivalent of such harm.
There’s even an argument that the Code of Professional Responsibility should serve as a measure of civil liability because it embodies “axiomatic norms” of professional conduct.[17] If the ethics code deems full communication a baseline obligation, then the failure to provide it, especially regarding time bars, should meet the threshold for malpractice.
But an uncomfortable truth still remains: the legal system judges lawyers far more leniently than it judges other professions.[18] Judges “have a greater understanding of and tolerance for legal mistakes than [for example] medical ones,” largely because they see themselves in the lawyer-defendant’s position.[19] This double standard thus perpetuates a culture of self-protection and inexplicit ignorance. When Kentucky courts decline to impose an affirmative duty on attorneys to inform clients about tolling, they reinforce that insularity. The law currently allows attorneys to hide behind complexity, a privilege denied to other professions whose errors can cost lives rather than lawsuits.[20]
In rural areas such as Eastern Kentucky, where “265,330 people live in poverty” (which, “for perspective, is 83% of the population of Lexington, Kentucky”),[21] three out of four adults read below an eighth-grade level,[22] and attorney shortages persist,[23] so many residents depend entirely on their lawyers to navigate the legal system.[24] Expecting such clients to identify tolling doctrines is inherently unrealistic, unfathomable, and demands accountability and change. Negligence in this setting perpetuates a cycle of disenfranchisement: those least able to protect their rights are most likely to lose them through silence, and tolerating such disparities sustains an unprecedented set of double standards.[25]
Kentucky can close this gap through three very straightforward, steps: (1) judicial recognition by the Kentucky Supreme Court in interpreting SCR 3.130(1.4) to include a duty to inform clients of apparent tolling doctrines; (2) legislative action by the General Assembly amending KRS Chapter 413 to classify nondisclosure as malpractice; and (3) professional guidance from the Bar Association in issuing an ethics opinion confirming that silence violates Rule 1.4.
Ultimately this is about trust. Clients rely on lawyers for understanding, not silence.[26] Kentucky should affirm that failing to inform a client of reasonably apparent tolling constitutes malpractice, reasserting the Commonwealth’s commitment to fairness, accountability, and access to justice.[27]
[1] Apple TV, The Big Conn – Official Trailer | Apple TV, at 00:58–1:02 (YouTube, Apr. 21, 2022), https://www.youtube.com/watch?v=M88ZzxKyrTg.
[2] Id. at 01:12–17.
[3] See generally Will Wright and Bill Estep, Suit Filed Against Eastern Kentucky Disability Lawyer as Legal Aid Group Offers Help to Hundreds Facing Suspension of Benefits, Lexington Herald Leader (Nov. 12, 2015 at 11:15 PM ET), https://www.kentucky.com/news/politics-government/article44602200.html (illustrating how attorney failures in Eastern Kentucky have left clients without information or representation, effectively denying them access to justice).
[4] Kentucky Access to Justice Commission, Ky. Ct. of Just., https://www.kycourts.gov/Legal-Help/Pages/Kentucky-Access-to-Justice-Commission.aspx (last visited Nov. 4, 2025).
[5] See generally Joseph H. Koffler, Legal Malpractice Statutes of Limitations: A Critical Analysis of a Burgeoning Crisis, 20 Akron L. Rev. 209, 213 (1986) (highlighting the severity of a client’s rights being “extinguished before [they] can maintain an action” for a violation of their rights by their attorney).
[6] See Ky. Sup. Ct. R. 3.130(1.4) (2022) (requiring that a lawyer must: (1) reasonably communicate with the client about their case; (2) promptly comply with reasonable requests for information; and (3) explain any and all issues to the client in a way that allows them to make “informed decisions regarding the representation”).
[7] Appalachian Learning Initiative, Literacy in Kentucky, https://www.appli.org/kentucky (last visited Nov. 4, 2025).
[8] Peter J. Biging & Jason L. Ederer, For Whom the Statute Tolls: Determining When a Legal Malpractice Claim is Time-Barred, 45 Brief 56, 57 (2016).
[9] Id.
[10] See, e.g., Debra Cassens Weiss, Client’s Ignorance Tolls Legal Malpractice Deadline, ABA J. (Aug. 16, 2007, 12:09 PM), https://www.abajournal.com/news/article/clients_ignorance_tolls_legal_malpractice_deadline (discussing how a “six-year statute of limitations isn’t stopping a [previous attorney’s client] from suing [their] lawyer for malpractice almost ten years after” their initial settlement and the court acknowledging that in the entirety of the record reviewed “[n]othing in [the] record suggests that plaintiff knew or should have known that [their attorney] had taken [them] off-course”).
[11] See Benjamin P. Cooper, When Clients Sue Their Lawyers for Failing to Report Their Own Malpractice, 44 Hofstra L. Rev. 441, 446-47 (2015) (discussing how clients who are unaware of attorney errors lose their last opportunity for redress when attorneys fail to disclose their mistakes throughout the course of representation).
[12] See id.
[13] Compare Benjamin P. Cooper, The Lawyer’s Duty To Inform His Client Of His Own Malpractice, 61 Baylor L. Rev. 174, 177-79 (2010) (arguing that failing to disclose one’s own malpractice is itself a form of professional misconduct), with Benjamin J. DiLorenzo, Diana C. Manning & Kyle A. Valente, The Duty to Disclose a Potential Claim, Bressler Amery & Ross (Oct. 21, 2024), https://www.bressler.com/publication-the-duty-to-disclose-a-potential-claim (explaining that a lawyer’s failure to disclose potential malpractice is not a minor oversight but a serious professional breach with real human consequences).
[14] Ky. Sup. Ct. R. 3.130(1.4) (2022); Model Rules of Pro. Conduct r. 1.4 (A.B.A. 2025).
[15] Model Rules of Pro. Conduct r. 1.4 cmt. (A.B.A. 2025).
[16] Model Rules of Pro. Conduct r. 1.18 (A.B.A. 2025).
[17] See Charles W. Wolfram, The Code of Professional Responsibility as a Measure of Attorney Liability in Civil Litigation, 30 S.C. L. Rev. 281, 284–87 (1979) (arguing the Code of Professional Responsibility should serve as a measure of civil liability because it reflects the profession’s “axiomatic norms” and minimum standards of professional conduct).
[18] See generally Ellen Wertheimer, Calling It a Leg Doesn’t Make It a Leg: Doctors, Lawyers, and Tort Reform, 13 Roger Williams U. L. Rev. 154, 155–57 (2008) (observing that the legal system, dominated by attorneys, is far more tolerant of legal malpractice than medical malpractice).
[19] Id. at 158.
[20] See Michael Moffitt, Settlement Malpractice, 86 U. Chi. L. Rev. 1825, 1830-32 (2019) (noting unlike doctors or other professionals, lawyers face little accountability for negligent advice because the malpractice doctrine insulates them through procedural complexity creating a de facto immunity for lawyers, shielding them from accountability for settlement-related conduct).
[21] The Need for Affordable Housing in Eastern Kentucky, Hous. Dev. All., Inc., https://hdahome.org/the-need/#:~:text=The%20average%20poverty%20rate%20for,%E2%80%A2 (last accessed Nov. 8, 2025).
[22] Appalachian Learning Initiative, supra note 7.
[23] KET, Solving the Rural Shortage, at 0:01-15 (KET, April 21, 2023), https://www.pbs.org/video/solving-rural-lawyer-shortage-r9u4ol/ (stating “Kentucky’s legal deserts are growing. Research by the Kentucky Bar Association’s Rural Practice Task Force found twenty-eight counties in Kentucky have ten or fewer practicing attorneys, and eight counties have five or fewer”).
[24] See generally Melissa L. Kidder, The Future of Rural Lawyering: How Law Schools Should Embrace a General Practice Legal Clinic Model to Address the Current and Future Legal Needs of Rural and Smaller Communities, 70 Drake L. Rev. 83, 84-93 (2022) (noting residents in rural and low-income communities often rely entirely on the limited number of available attorneys to secure even basic legal assistance).
[25] See Leslie. C. Levin, Ordinary Clients, Overreaching Lawyers, and the Failure to Protect the Vulnerable Client, 53 Am. U. L. Rev. 447, 483 (2021) (explaining State and federal courts continue to struggle to provide meaningful protection for ordinary clients, many of whom lack the resources or knowledge to safeguard their own interests).
[26] Cooper, supra note 11.
[27] Kentucky Access to Justice Commission, Ky. Ct. of Just., https://www.kycourts.gov/Legal-Help/Pages/Kentucky-Access-to-Justice-Commission.aspx (last visited Nov. 4, 2025).