Saturday, April 25, 2020

Too Late To Sue

The Wyoming Supreme Court affirmed the dismissal of legal malpractice and related claims against an attorney

Mr. Foltz failed to plead his fraud claim with the particularity required by Rule 9(b), and his breach of contract claim, if any, arises out of his professional relationship with Mr. Oblasser. Mr. Foltz knew or should have known of his alleged cause of action against Mr. Oblasser no later than January 19, 2017. He filed his complaint on May 9, 2019. The two year professional malpractice statute of limitations therefore bars his complaint.

The representation involved serious criminal charges

In May 2015, Mr. Foltz retained Mr. Oblasser to defend him against a first degree murder charge. Mr. Foltz paid a $30,000 retainer, and Mr. Oblasser entered his appearance. When the State decided to seek the death penalty, Mr. Oblasser moved to withdraw from representation because he was not death penalty certified and thus could not independently represent Mr. Foltz. See Eaton v. State, 2008 WY 97, ¶ 37, 192 P.3d 36, 62 (Wyo. 2008) (adopting the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (February 2003)). The court allowed Mr. Oblasser to withdraw and appointed two death penalty certified State Public Defenders to represent Mr. Foltz. The State Public Defender’s Office permitted Mr. Oblasser to assist in Mr. Foltz’s defense under a “pro bono agreement[,]” and Mr. Oblasser re-entered an appearance “acting as [an] Assistant Public Defender[.]” Mr. Oblasser continued in that capacity even after the State withdrew its death penalty election.

A jury convicted Mr. Foltz of first degree murder following a two-week trial in the fall of 2016. The district court sentenced him to life imprisonment without the possibility of parole on January 19, 2017. We affirmed his conviction and sentence in Foltz v. State, 2017 WY 155, 407 P.3d 398 (Wyo. 2017).

In October 2018, Mr. Foltz contacted Mr. Oblasser, requesting that he return the $30,000 retainer. Mr. Oblasser refused to refund the retainer, explaining he represented Mr. Foltz through trial.Mr. Foltz sued Mr. Oblasser and his firm on May 9, 2019. His pro se complaint alleged Mr. Oblasser knew the State could choose to pursue the death penalty and if the State did pursue the death penalty he would no longer be able to represent Mr. Foltz. The complaint further alleged Mr. Oblasser could not provide competent representation under Rule 1.1 of the Wyoming Rules of Professional Conduct; violated Rule 1.5(a) by charging a $30,000 retainer knowing he could not represent Mr. Foltz if the State elected to seek the death penalty; and, violated Rule 1.16(d) by withdrawing from representation without refunding the retainer.


Mr. Foltz filed his complaint and presents this appeal pro se. He concedes he did not file his complaint within the two-year statute of limitations applicable to a professional malpractice suit. Instead, he argues the complaint should be read to assert breach of contract and fraud claims subject to 10- and four-year statutes of limitations, respectively.
We agree with the district court that Mr. Foltz did not plead a fraud claim with the particularity required by Rule 9(b), W.R.C.P. 9(b), and conclude the two-year professional malpractice statute of limitations bars his complaint even if breach of contract was adequately pled.

Gillette News Record reported on the criminal case. (Mike Frisch)

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