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Togstad v. Vesely, Otto, Miller & Keefe

Supreme Court of Minnesota
291 N.W.2d 686 (1980)
ELI5:

Rule of Law:

An attorney-client relationship is created, and a duty of care arises, when an individual seeks and receives legal advice from an attorney under circumstances in which a reasonable person would rely on such advice, even in the absence of a formal retainer agreement or payment of fees.


Facts:

  • In August 1971, John Togstad suffered a brain aneurysm and underwent a surgical procedure involving a 'Selverstone clamp' on his carotid artery.
  • A nurse later found Togstad unable to speak or move; a resident physician was called but did not adjust the clamp, and the attending surgeon, Dr. Blake, did not arrive for another hour to open it.
  • As a result of the incident, John Togstad was left severely paralyzed and unable to speak.
  • Approximately 14 months later, Joan Togstad met with attorney Jerre Miller to discuss a potential medical malpractice claim.
  • During the 45-minute meeting, Mrs. Togstad detailed the circumstances of her husband's injury, and Miller took notes.
  • Miller stated that he did not think they had a legal case but would discuss it with his partner and call if his opinion changed.
  • Mrs. Togstad was not billed for the consultation, did not sign a retainer, and was not advised about the two-year statute of limitations for medical malpractice.
  • Relying on Miller's assessment, Mrs. Togstad did not consult another attorney for over a year, by which time the statute of limitations on the medical malpractice claim had expired.

Procedural Posture:

  • John and Joan Togstad (plaintiffs) sued attorney Jerre Miller and his law firm (defendants) for legal malpractice in Hennepin County District Court, the trial court of first instance.
  • A jury returned a special verdict finding that an attorney-client relationship existed, Miller was negligent, and his negligence directly caused the plaintiffs' damages.
  • The jury awarded $610,500 to John Togstad and $39,000 to Joan Togstad.
  • The defendants filed a post-trial motion for judgment notwithstanding the verdict or, alternatively, for a new trial.
  • The trial court denied the defendants' motion.
  • The defendants (appellants) appealed the trial court's denial to the Supreme Court of Minnesota, with the Togstads as appellees.

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Issue:

Does an attorney-client relationship exist, creating a duty of care, when a person consults an attorney for a preliminary opinion on a legal matter and the attorney gives advice, upon which the person relies?


Opinions:

Majority - Per Curiam

Yes. An attorney-client relationship exists under these circumstances. The court found that regardless of whether the analysis is based on contract or tort theory, a professional relationship was formed. Mrs. Togstad sought legal advice, Miller rendered it, and it was reasonably foreseeable to Miller that Mrs. Togstad would rely on that advice. The court reasoned that when a potential client seeks and receives legal advice, and it is reasonable for them to rely on it, the attorney owes them a duty to act with due care. Miller was negligent not just for his assessment of the case, but for failing to conduct the minimum research required by professional standards—such as reviewing hospital records and consulting an expert—before giving an opinion. Furthermore, an expert witness confirmed that the standard of care also required Miller to inform Mrs. Togstad of the two-year statute of limitations, which he failed to do.



Analysis:

This case is significant for establishing that an attorney-client relationship, with its corresponding duties, can be formed during a single, informal consultation, even without payment. It broadens the scope of legal malpractice liability by grounding the formation of the relationship in the client's reasonable reliance on the attorney's advice. The decision serves as a critical warning to attorneys that providing any legal opinion, including a decision to decline a case, creates a professional duty. Consequently, lawyers must exercise due care, conduct minimal investigation, and clearly communicate crucial information like statutes of limitation during initial client meetings.

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