After her husband suffered serious injuries that allegedly resulted from medical negligence, Mrs. Togstad met with attorney Miller of the defendant law firm to discuss a possible malpractice action. Miller listened to the facts, told her he did not think there was a case, and did not advise her about the statute of limitations or recommend seeking another opinion; the firm also sent no disclaimer or nonengagement letter. Relying on that advice, the Togstads did not timely pursue a medical malpractice claim. They later sued the law firm for legal malpractice, alleging that the lost medical malpractice action would likely have succeeded and had substantial value.
Can an attorney-client relationship, and thus a duty of care, arise from an initial consultation in which the lawyer gives legal advice without being formally retained or paid?
An attorney-client relationship may be implied from the parties’ conduct when a person seeks legal advice from an attorney acting in a professional capacity and reasonably relies on that advice. A lawyer who undertakes to give advice in such a consultation owes a duty to use the care, skill, and diligence ordinarily exercised by attorneys, and may be liable if negligent advice causes the client to lose an otherwise meritorious claim.
Yes. The evidence supported a finding that an attorney-client relationship arose during the consultation and that Miller negligently advised Mrs. Togstad, causing the loss of a viable medical malpractice claim; the malpractice verdict against the firm was therefore upheld.
The court emphasized that a formal retainer, fee payment, or express agreement is not necessary if the surrounding circumstances show that legal advice was sought and given under circumstances creating reasonable reliance. Mrs. Togstad consulted Miller specifically for professional advice, he evaluated the claim and advised that there was no case, and he failed to warn about limitations or suggest prompt further review. Because plaintiffs also presented sufficient evidence that the underlying medical malpractice action would probably have succeeded, the jury could find causation and damages. The firm was therefore responsible for the loss of the underlying claim’s value.
Togstad is a leading legal-malpractice case on implied attorney-client relationships and the danger of informal legal advice during intake interviews. It is frequently cited for the proposition that lawyers can assume duties to prospective clients even without a formal retainer, especially when the client reasonably relies on advice and the lawyer gives no clear nonrepresentation warning. The case is also important for the “case within a case” requirement in malpractice actions, under which the plaintiff must prove the underlying claim would have succeeded. Closely related authorities include Lucas v. Hamm, 56 Cal.2d 583, 364 P.2d 685 (1961), and Trask v. Butler, 123 Wash.2d 835, 872 P.2d 1080 (1994).
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