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Nesvig v. Nesvig2/25/2004
estions 4-7. In this case, the foreperson shall sign the verdict and notify the bailiff.)
As a result of the jury's answers to questions one through three, the jury did not answer questions four through seven relating to proximate cause, damages, and interest.
[ ] Gordon Nesvig does not dispute that good faith is not a defense to a legal malpractice case. Although he claims this is not a legal malpractice case, he perhaps incongruously argues the trial court correctly included the good faith inquiry in the special verdict because that inquiry is authorized by his interpretation of a rule of professional conduct for attorneys, N.D.R. Prof. Conduct 1.15.
[ ] We have said the actual nature of the subject matter of an action determines whether it is a legal malpractice case. Johnson v. Haugland, 303 N.W.2d 533, 538 (N.D. 1981). We have defined malpractice as a "failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result that injury, loss, or damage to the recipient of those services or to those entitled to rely upon them." Johnson, at 538 (citing Webster's Third New International Dictionary (Unabridged 1971)). In Johnson, at 538, in the context of considering a statute of limitations issue, we looked at the essence of a complaint against an attorney and his law firm, and we said the allegations involved conduct in the framework of an attorney-client relationship during the course of prior litigation, which involved an alleged breach of a professional duty and a failure to inform the client of a conflict in interest. We concluded the actual nature of the subject matter of the action was legal malpractice. Id. at 538-39. In Sime v. Tvenge Assoc. Architects & Planners, P.C., 488 N.W.2d 606, 610 (N.D. 1992), we said malpractice refers to actions where a fact-finder must evaluate the reasonableness of a defendant's conduct in light of the special knowledge and skill the defendant is presumed to have as a member of the profession.
[ ] Richard Nesvig's complaint alleged Gordon Nesvig represented Richard Nesvig in prior litigation that resulted in a net award to him of $611,768.18, and based upon Gordon Nesvig's representations that he would properly invest, safeguard, and manage the money, Richard Nesvig permitted Gordon Nesvig to retain control of the money. Richard Nesvig alleged Gordon Nesvig solicited and accepted a fiduciary relationship and had a duty to prudently and responsibly invest the entrusted funds. Richard Nesvig testified he "thought [Gordon Nesvig] was going to invest [the money] somewhere down the road or give it to me or whatever, but I thought he was going to invest it somewhere where we could get some more money." Attorney James Coles, Richard Nesvig's expert, testified at trial about Gordon Nesvig's obligation:
the basic obligation is you should not take any action that would harm your client and that would include financial harm. And, also, you have an obligation as an attorney and we have to remember they also call us attorneys and counselors at law. There is a reason for that. People look to attorneys for advice and I think there is a strong obligation to look at these funds. And as I understand it, the information that I have tells me that basically this was money from a personal injury suit and that Richard was injured to the extent that future employment was questionable. So we are looking at a sum of money that basically is the money that would have to survive him for whatever his life is, whatever his life expectancy is and what and where that money has got to go. And
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