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Nesvig v. Nesvig2/25/2004
Bros. v. Hjellum, 359 N.W.2d 865, 875 (N.D. 1985); Matter of Jaynes, 267 N.W.2d 782, 784 (N.D. 1978). We thus reject Gordon Nesvig's claim that N.D.R. Prof. Conduct 1.15 establishes a good faith defense for returning a client's money. Rather, an attorney must employ the degree of skill, care, diligence and knowledge commonly possessed and exercised by a reasonable, careful, and prudent lawyer, see Wastvedt, 430 N.W.2d at 565, and, as a fiduciary, an attorney must provide advice for the benefit of another upon matters within the scope of the relationship. Lutz, 1997 ND 82, 32, 563 N.W.2d 90. Although an attorney and a client may reach an agreement about the client's funds, the attorney has an obligation as a reasonable, careful, and prudent lawyer to adequately advise the client. See Wastvedt, 430 N.W.2d at 566.
[ ] We conclude the instructions and the special verdict erroneously limited the jury's inquiry to whether Gordon Nesvig acted in good faith in failing to return the money to Richard Nesvig and whether there was an agreement to invest the money in something other than a money market account without appropriate consideration of an attorney's obligation to provide advice appropriate for the situation. We conclude those instructions did not correctly and adequately inform the jury about the applicable law on essential issues of the case, and a new trial is required. We decline Richard Nesvig's request to rule, as a matter of law, Gordon Nesvig breached a professional duty to Richard Nesvig and that the breach was the proximate cause of $335,650 in damages to Richard Nesvig. We also reject Richard Nesvig's claim for attorney fees.
III.
[ ] We reverse the judgment dismissing Richard Nesvig's action against Gordon Nesvig, and we remand for proceedings consistent with the opinion.
[ ] Gerald W. VandeWalle, C.J.
Carol Ronning Kapsner
Dale V. Sandstrom
William A. Neumann
Maring, Justice, concurring in the result.
[ ] I concur in the result. I agree with the majority opinion that the instructions and the special verdict erroneously permitted the jury to consider a good-faith defense for returning a client's money. I also agree this action is one for professional malpractice and the prudent investor rule does not apply. I write separately because I am concerned that the majority opinion does not clearly set forth the law applicable to legal malpractice. The elements of a legal malpractice claim for negligence are the existence of an attorney-client relationship, a duty to the client, a breach of that duty by the attorney, and damages to the client proximately caused by breach of that duty. Wastvedt v. Vaaler, 430 N.W.2d 561, 564-65 (N.D. 1988); Larson v. Norkot Mfg., Inc., 2002 ND 175, 10, 653 N.W.2d 33 (quotation omitted). The verdict form in the present case should ask whether there was an attorney-client relationship at all times relevant; whether the attorney committed legal malpractice by either (1) providing negligent advice or (2) failing to return the client's money upon request; and whether the attorney's negligence proximately caused damage to the client and, if so, in what amount. Conceivably the client's fault could be compared to the attorney's fault if there is evidence of such, i.e., disregard for the advice of the attorney. Wastvedt, at 564. It is fundamental that "before an attorney's advice or conduct can be the proximate cause of damage, the [client] must establish that the advice or conduct falls below the applicable standard of care and constitutes therefore a breach of duty." Id. at 565. "The standard of care or duty to which an attorney is held in the performance of professi
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