Togstad v. Vesely, Otto, Miller & Keefe

Although Togstad (Plaintiff) had not formally retained Miller (Defendant), she successfully sued him for legal malpractice.

Synopsis of Rule of Law.

A retainer is not required for an attorney-client relationship to exist and that may give rise to a malpractice claim.

Facts.

Following a medical procedure, Mr. Togstad (Plaintiff) was left paralyzed.  Fourteen months later, Mrs. Togstad (Plaintiff) consulted with Miller (Defendant) of Vesely, Otto, Miller & Keefe (Defendant) regarding a possible action for medical malpractice.  Following their first consultation, Defendant told Plaintiff that he did not think she had a case, but would speak to his partner nevertheless.  Defendant never called back.  After Minnesota’s two-year statute of limitations on medical malpractice had expired, Plaintiff brought a legal malpractice action against Defendant for giving them wrong advice and not advising them of the two-year statute.  A jury found Defendant guilty of malpractice and awarded over $600,000 in damages.  Defendant (Miller) and his firm (Defendant) appealed.

Issue.

Is a retainer required for an attorney-client relationship to exist and that may give rise to a malpractice claim?

Held.

(Per curiam)  No.  A retainer is not required for an attorney-client relationship to exist and that may give rise to a malpractice claim.  The first element in a malpractice claim is the existence of an attorney-client relationship.  The core of this relationship is the attorney providing advice to a person which the attorney expects will be followed.  Actual retention is not required.  In this case, Mrs. Togstad (Plaintiff) requested and received legal advice from Miller (Defendant).  It was totally reasonable for Miller (Defendant) to have expected the Togstads (Plaintiff) would follow his advice, which is exactly what they did.  Consequently, for purposes of a malpractice action, an attorney-client relationship did exist between the Plaintiff and Defendant.  Affirmed

Dissent.

It is not clear regarding whether the attorney-client relationship is defined by contract or tort theory.  Around the nation, on various grounds, appellate courts have ruled both ways on the issue.  In this case the court recognized this diversity of opinion but did not indicate whether it preferred one theory over the other.  The court believed the contract and tort analyses for this case to be so similar that they did not need to be distinguished.