## Facts

- John Togstad was hospitalized in August 1971 for severe headaches and diagnosed with a large aneurysm.
- A neurosurgeon treated the condition using a Selverstone clamp; when the clamp was partially closed, Togstad became unable to speak or move and later suffered severe paralysis and loss of speech.
- About fourteen months later, Joan Togstad consulted attorney Jerre Miller at his firm about a potential medical malpractice claim.
- Joan described the incident; Miller did not obtain medical authorizations, review medical records, or consult a medical expert.
- Miller told Joan he did not think they had a case and said he would speak to a partner; he did not contact her again.
- Miller did not bill Joan, did not clearly decline representation, did not advise seeking other counsel, and did not warn about the two-year medical-malpractice statute of limitations.
- The Togstads relied on Miller’s advice and did not pursue the claim; when Joan later consulted another lawyer, the limitations period had expired.
- The Togstads sued Miller and his firm for legal malpractice; a jury found negligence and causation and awarded $610,500 to John and $39,000 to Joan.
- The trial court denied post-trial motions; defendants appealed.

## Issues

1. Whether sufficient evidence supported finding an attorney-client relationship (and duty) arising from an initial consultation without a formal retainer or fee.
2. Whether Miller breached the standard of care by giving a negative assessment without investigation and by failing to warn of the statute of limitations.
3. Whether plaintiffs proved causation by showing they lost a meritorious underlying medical-malpractice claim because of defendants’ negligence.
4. Whether damages (including loss of consortium) were excessive or should be reduced by hypothetical contingent fees.
5. Whether alleged improper closing argument warranted a new trial.

## Decision

- The Minnesota Supreme Court affirmed the judgment for plaintiffs.
- The evidence permitted the jury to find an attorney-client relationship based on requested and provided legal advice reasonably expected to be relied upon.
- The evidence supported a finding that Miller’s handling of the consultation fell below the professional standard of care.
- The evidence supported causation that negligence caused loss of the opportunity to pursue the underlying medical-malpractice claim.
- The damages awards, including Joan’s consortium damages, were upheld; no reduction was required for speculative contingent-fee offsets.
- Alleged improprieties in closing argument did not justify a new trial.

## Legal Principles

- An attorney-client relationship may arise without formal retention or payment when a person seeks and receives legal advice under circumstances in which the lawyer knows or should know the advice will be relied upon.
- A lawyer who provides an opinion on the merits of a claim must exercise reasonable professional care, which may require basic investigation (such as obtaining authorizations, reviewing records, and consulting appropriate experts) before advising a prospective client.
- Failure to warn of an applicable statute of limitations can support legal-malpractice liability when it foreseeably causes loss of the client’s claim.
- In a legal-malpractice action, the plaintiff must prove “case within a case” causation: that the attorney’s negligence caused loss of a likely successful (or materially valuable) underlying claim.
- Damage awards for loss of consortium may be sustained when supported by evidence of marital harm during the marriage; later divorce does not, by itself, defeat the claim.
- Courts may decline to reduce malpractice damages by hypothetical contingent fees where the offset is speculative in the posture presented.

## Conclusion

The court held that a consultation can create an attorney-client relationship and a duty of care even without a retainer, and it affirmed malpractice liability where counsel gave uninformed discouraging advice and failed to warn of limitations, causing the clients to forfeit a viable underlying claim.


Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980)