Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Legal malpractice: MSBA amicus brief

Does reaffirming prior negligent advice restart the statute of limitations clock?

The Minnesota Supreme Court recently addressed this question in Frederick v. Wallerich, a case involving a negligently drafted antenuptial agreement. The attorney who drafted the antenuptial agreement continued to advise and represent her client in other matters, including drafting the client’s will. The client alleged that during this time, the attorney advised him that his antenuptial agreement was valid and enforceable. It was only during discovery in the client’s divorce—more than seven years later—that the client learned the antenuptial agreement was invalid because it lacked the required witness signatures.

The lower courts held that the client’s claims were time-barred under Minnesota’s six-year statute of limitations for legal malpractice. Minn. Stat. §541.05, subd. 1(5). The client appealed to the Minnesota Supreme Court, arguing that each time the attorney reassured him that the antenuptial agreement was valid, a separate and distinct act of negligence occurred, and a new statute of limitations period began to accrue.

Without advocating on behalf of either party, the MSBA weighed in on this issue via an amicus brief written by Michael McCarthy and Erica Holzer of the Maslon law firm.

Minnesota follows the “some damage” accrual rule, under which the cause of action accrues and the statute of limitations begins to run when “‘some’ damage has occurred as a result of the alleged malpractice.” Antone v. Mirviss, 720 N.W.2d 331, 335 (Minn. 2006). The MSBA urged the rule remain intact.

The more significant question presented was how Minnesota’s “some damage” rule applies when multiple, related acts of negligence by the same attorney are alleged. The MSBA posited that the fraudulent concealment doctrine provides the appropriate analytical framework for this case and similar cases in which an attorney makes statements endorsing her own prior negligent advice and, as a result, the client remains ignorant of his potential cause of action against the attorney for legal malpractice. The MSBA further posited that in the rare circumstance when a client specifically asks his attorney to reevaluate a discrete piece of previously given legal advice, the attorney may be found to have breached a separate and distinct duty to the client, such that a new cause of action, with a new limitations period, may arise.

Referring to the MSBA’s amicus brief, the Court’s opinion stated, “[L]awyers must be afforded adequate discretion to make judgment calls when clients seek to revisit previously completed projects. Lawyers must, based on context, discern whether the client simply wants reassurance that the project was completed, a reminder of the outcome, assurance that the outcome was favorable, or additional legal research on the question. We agree with the Minnesota State Bar Association and note that [the] rule [advanced by appellant] is too broad because it assumes that every client, in revisiting previous work, prefers the last option: to have the attorney conduct new research and analysis every time a client asks a question. We therefore reject [appellant’s] proposed bright-line rule. A more fact-specific approach, as we adopt today, permits us to conclude that this subsequent act—a failure to verify the validity of the antenuptial agreement before incorporating it into additional work—may, if proven, give rise to a separate cause of action for negligence.” The Supreme Court reversed and remanded, outlining five non-exhaustive factors that may be considered in this fact-specific approach. Justices Gildea and Anderson dissented.

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