## Facts

- Jon and Don Behrens owned a funeral-home business and negotiated a sale to Loewen International, Inc.
- The negotiated terms included a cash payment at closing and later installment payments evidenced by an unsecured promissory note.
- Before retaining counsel, Behrens and Loewen executed a written agreement reflecting these basic terms.
- Behrens then retained attorney Melvin Wedmore, their long-time lawyer, primarily to close the transaction.
- Loewen later filed for bankruptcy, and Behrens were unable to recover the full purchase price or regain the business.
- Behrens sued Wedmore for legal malpractice, alleging he failed to (1) secure or better collateralize the note and (2) advise them about bankruptcy risks tied to an unsecured installment sale.
- Wedmore contended his role was constrained by the preexisting signed agreement and that he acted within the applicable standard of care.
- Wedmore presented expert testimony that an attorney should treat a signed agreement as binding, could not materially improve the client’s position without jeopardizing the deal, and could not have achieved a better outcome in the later bankruptcy.
- Wedmore also asserted defenses that Behrens were contributorily negligent and had assumed the risk by agreeing to the transaction’s unsecured credit structure and by proceeding without counsel during negotiation.

## Issues

1. Whether contributory negligence by a client is a legally permissible defense in a legal-malpractice action under South Dakota comparative-fault principles.
2. Whether assumption of the risk is a proper defense in a legal-malpractice case, particularly when the client’s alleged risk acceptance predates the attorney’s retention or falls outside the representation’s scope.
3. Whether the jury instructions on contributory negligence and assumption of the risk were erroneous and, if so, whether any error required reversal of the defense verdict.

## Decision

- The South Dakota Supreme Court affirmed the judgment entered on the jury’s verdict for Wedmore.
- The court held that contributory negligence may be considered in legal-malpractice actions under South Dakota’s comparative-fault framework when the client’s conduct is relevant to causation and damages and is distinct from the attorney’s professional duties.
- The court treated assumption of the risk as having a limited role in professional-negligence cases and cautioned against using it to shift an attorney’s duties to the client.
- Viewing the instructions as a whole, the court concluded any imperfections did not mislead the jury in a prejudicial way warranting a new trial.

## Legal Principles

- Legal-malpractice claims are generally governed by ordinary negligence principles, including comparative fault, when the client’s conduct contributes to the claimed loss.
- Client fault is not properly compared when doing so would dilute the attorney’s duty of professional care or excuse negligence within the scope of representation.
- Assumption of the risk is not an automatic bar in professional-negligence cases; at most, it may inform comparative responsibility where the client knowingly and voluntarily chose a risk relevant to causation.
- Jury instructions are reviewed as a whole, and reversal is appropriate only when instructional error likely misled or confused the jury to the appellant’s prejudice.
- Malpractice liability requires proof of causation; where a transaction’s core terms were fixed by a preexisting agreement, the attorney’s potential liability is limited to what could reasonably be changed within the engagement’s scope.

## Conclusion

The court affirmed a defense verdict in a legal-malpractice suit arising from an unsecured installment sale that later failed in the buyer’s bankruptcy, holding that comparative fault principles can permit consideration of client contributory negligence and that assumption-of-risk concepts have only a limited, non-dispositive role, particularly where causation and the scope constraints of a preexisting agreement support the verdict.


Behrens v. Wedmore, 698 N.W.2d 555 (S.D. 2005)