In order to establish a legal malpractice claim in Minnesota, a legal malpractice claimant needs to show:
1. An attorney-client relationship with the lawyer;
2. Wrongful conduct on the part of the lawyer, that is, that the attorney was negligent or breached the attorney-client contract; and
3. That the lawyer’s wrongful conduct caused the client to sustain damages.
The Attorney-Client Relationship
In most cases, there is no issue concerning the existence of the attorney-client relationship. Typically there is a retainer agreement or other documentation to establish the attorney-client relationship. Absent an express or implied agreement, an attorney-client relationship can be shown where an individual seeks and receives legal advice from an attorney under circumstances in which a reasonable person would rely on such advice. TJD Dissolution Corp. v. Savoie Supply Co., 460 N.W.2d 59, 62 (Minn. App. 1990). A mere expectation that an attorney will represent someone, however, is insufficient to create an attorney-client relationship.Spannaus v. Larkin, Hoffman, Daily, and Lindgren, 368 N.W.2d 395, 398-99 (Minn.App. 1985).
Wrongful Attorney Conduct
The attorney conduct that gives rise to a legal malpractice claim is usually some type of negligence, that is, a failure by the lawyer to comply with the standards of care required by the nature of the legal undertaking. The issue concerning whether the lawyer’s conduct constitutes negligence, is often disputed.
In order to establish that the lawyer’s conduct at issue was negligent, Minnesota law usually requires expert testimony. In fact, in order to commence an action for legal malpractice in Minnesota, it is necessary to include with the complaint an affidavit alleging that the facts of the claim have been reviewed by another qualified attorney who holds the opinion that the conduct at issue constitutes a deviation from the applicable standard of care and that it caused the client damages. This is called the affidavit of expert review. Minn. Stat. § 544.42. Failure to comply with the required affidavit of expert review, can result in dismissal of the legal malpractice claim.
Common Minnesota Legal Malpractice Claims
One of the most common situations that will give rise to a meritorious legal malpractice claim occurs when an attorney misses the deadline for filing a client’s lawsuit. The specific amount of time allowed to commence any Minnesota lawsuit varies, depending on the nature of the claim to be asserted. For example, the time period applicable to commencing suit in Minnesota for a breach of contract is 6 years, while is the time period to file suit for defamation is 2 years.
When a client loses the right to pursue a legal claim due to his own lawyer’s carelessness, the lawyer’s failure to have commenced the lawsuit within the statute of limitations frequently results in a lawsuit for legal malpractice. The client’s damages are measured by the value of the underlying claim that has been become time-barred.
In Togstad v. Vesely, Otto, Miller and Keefe, 291 N.W.2d 686 (Minn. 1980), the defendant attorney declined to pursue a medical malpractice case for which he had been consulted by the plaintiff Togstad. The defendant attorney’s failure to advise his former client as to the 2 year statute of limitations applicable to the medical malpractice matter was found to be the cause of Togstad’s failure to timely commence the underlying medical malpractice claim. In the legal malpractice trial, the jury found that the underlying medical malpractice claim had merit, awarding damages for the value of the expired medical malpractice claim against the attorney.
Even when there is no dispute that the client’s cause of action has become time-barred due to the attorney’s neglect, the client still needs to show that he or she sustained a loss due to the expiration of the statute of limitations. In other words, in order for the client to recover on the legal malpractice claim, the former client needs to show that the underlying cause of action had merit before it became time-barred.
In Rouse v. Dunkley and Bennett, P.A., 520 N.W.2d 406 (Minn. 1994), Rouse’s claim that his attorney allowed the two year statute of limitations applicable to his defamation suit to expire, was properly dismissed due to his failure to show that the defamatory statement had ever been published as required by defamation law. Rouse’s failure to show that he would have survived a summary judgment motion in his underlying defamation claim, entitled his former attorney to summary judgment in the legal malpractice action.
Time Limitation to Bring Suit for Minnesota Legal Malpractice
Under Minnesota law, claims alleging negligence by an attorney are subject to a 6 year statute of limitations. Minn. Stat. § 541.05, subd. 1(5). The time period to bring suit against an attorney for negligence will commence to run when the cause of action would survive a motion to dismiss, even if the client is not aware of having sustained any damage due to the attorney’s carelessness. Herrmann v. McMenomy and Severson, 590 N.W.2d 641 (Minn. 1999).
In Antone v. Mirviss, 720 N.W.2d 331 (2006), the Minnesota Supreme Court held that Antone’s claim for legal malpractice due to his lawyer’s negligent drafting of a prenuptial agreement was time-barred. The court held that Antone had sustained some damage due to his former lawyer’s drafting of the prenuptial agreement either at the date of his marriage or when the pre-marital property appreciated. Since both of these events had occurred more than 6 years prior to the filing of Antone’s legal malpractice claim, the claim was dismissed as untimely. The appellate court specifically rejected Antone’s argument that he had not sustained any damages until the district court awarded a portion of the marital appreciation to his wife in a dissolution proceeding, an event which occurred within 6 years of filing his legal malpractice case.
Fraudulent Concealment Tolls the Legal Malpractice Time Limitation
As with other types of legal claims, Minnesota law recognizes that the time period to bring suit for legal malpractice will be tolled or suspended, if the attorney has fraudulently concealed the facts concerning the client’s claim for legal malpractice. Cohen v. Appert, 463 N, W. 2d 787 (Minn. App. 1990). The doctrine of fraudulent concealment suspends the running of the statute until the client discovers the facts concerning the claim against the attorney.
Although fraudulent concealment may be established in the absence of an attorney’s affirmative acts, the client still needs to show that suit for legal malpractice was commenced within 6 years of the client’s discovery of the legal malpractice claim, and that the delay in commencing suit was not due to the client’s lack of diligence.