Sunday, February 2, 2020

When The Client Has A Right To Know The Lawyer Erred

The South Dakota Supreme Court reversed the grant of summary judgment to a defendant in a legal malpractice case.

The alleged malpractice involved the failure to timely serve a defendant in an accident case. 

The court discusses the duty to communicate errors in representation to the client, noting that a recent ABA opinion was not binding

We do not, however, view the ABA’s opinion to be binding on this Court, nor does the opinion necessarily establish a tort duty or express a standard of care for liability purposes.


When an act, error, or omission could reasonably be expected to be the basis of a legal malpractice claim against a lawyer, the lawyer’s professional responsibility to keep a client “reasonably” informed is directly implicated. Imposing a legal duty to disclose such an act, error, or omission serves the purpose of ensuring that a client is able to make an informed decision about how best to proceed under such circumstances...

Here, [attorney] Howey-Fox was informed within days that Ewalt had not been served in Yankton County, and that service was not made within three years from the date of the accident. Howey-Fox also admitted that she “immediately” notified her professional malpractice carrier of the potential malpractice claim against her. The personal injury action against Ewalt was finally dismissed on April 5, 2013, for failure to timely commence the action. It is beyond debate, under the standard we define today, that Howey-Fox had a duty to disclose the potential malpractice claim to Robinson-Podoll when the personal injury action against Ewalt was dismissed on April 5, 2013, and likely much before that time. Yet Howey-Fox testified,

Q: Did you ever advise Miss Robinson that there was a potential legal malpractice claim stemming from the improper service? [Howey-Fox]: Nope. I told her she had a potential claim against the county for their failure to serve or, at the very least, failure to tell me when they knew she wasn’t living in Yankton County to give those papers back, or at the least let me know so I could get her served.

But as to the start of the malpractice limitations

Here, Robinson-Podoll initially sustained damage from a single act of alleged negligence when Howey-Fox failed to timely commence the personal injury action against Ewalt. Any wrongful conduct by Howey-Fox thereafter in failing to disclose the error was not the cause of that initial injury. Thus, the continuing tort doctrine did not delay the occurrence of the three-year repose period on the malpractice claim for failing to timely file the personal injury action.

Nevertheless, questions of fact exist as to whether Howey-Fox’s alleged ongoing tortious conduct in failing to disclose this malpractice supports a separate claim for legal malpractice, that occurred less than three years before Robinson-Podoll commenced this action in January of 2016. Viewing the facts most favorably to Robinson-Podoll shows that Howey-Fox’s duty to disclose and alleged breach of that duty occurred after Howey-Fox allegedly failed to timely commence the personal injury action in 2010. Facts also exist showing that Howey-Fox’s failure to disclose this alleged error during the representation, that continued through 2015, resulted in (1) “a continuous and unbroken course of negligent” representation, and (2) the representation “was so related as to constitute one continuing wrong.”

Finally, as to the ring, we conclude that Robinson-Podoll sufficiently alleged ongoing acts or omissions that support a claim for continuing tortious conduct. Robinson-Podoll claims that Howey-Fox took the ring as collateral in 2012 and held it throughout the representation. Questions of fact exist on this record as to whether Howey-Fox breached professional duties owed to Robinson-Podoll by taking the ring and continuing to hold the ring without returning it to Robinson-Podoll. [citing Rule 1.8] These questions require that we also remand this claim to determine the date of the occurrence under the continuing tort doctrine.

Bar Discipline & Process, Clients | Permalink


Thank you very much for this, it was so helpful.

Posted by: Mukrian Muhammed | Feb 3, 2020 11:00:46 AM

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