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Behrens v. Behrens6/22/2005
nvolving honesty and fair dealing in the attorney-client relationship, an untimely disclosure and subsequent disagreement over the reasonableness of a fee does not necessarily involve a breach of a fiduciary duty.
[ .] Finally, even if a fiduciary instruction were appropriate, we see no prejudice because the reasonableness of the fee was submitted to the jury. As Wedmore points out, even " he relief [Behrens] sought under the breach of fiduciary duty claim concerned excessive attorney's fees," and "the jury was allowed to consider the reasonableness of Wedmore's fees under [...] ... Rule ... [...]1.5." Therefore, we agree that even if a breach of fiduciary duty instruction had been warranted, Behrens were not prejudiced because the jury was permitted to consider Behrens' only request for relief.
[ .] In summary, Behrens cited no facts or authority that a reasonableness dispute or a failure to timely communicate a fee arrangement was automatically and necessarily a breach of a fiduciary duty. Therefore, the trial court did not err in declining to give such an instruction. We have often held that the failure to cite authority in support of an issue at trial is a waiver of the right to present that issue on appeal. State v. Pellegrino, 1998 SD 39, , 577 NW2d 590, 599 (citations omitted). Furthermore, considering the lack of Behrens' evidence and the trial court's submission of the fee dispute to the jury on an alternate theory, Behrens have failed to establish prejudicial error.
4. Whether Wedmore had the duty to seek the advice and assistance of a specialist.
[ .] Behrens contended that Wedmore "failed to adequately advise them about the risks of the installment transaction, and particularly about the risks of bankruptcy ." An expert testified that Wedmore should have advised them of the risk of nonpayment, stating that there is no meaningful way to talk about risks without talking about bankruptcy. Behrens further contended that Wedmore had no experience in bankruptcy, and that he used the same strict foreclosure and default language in his documents for over thirty years. Therefore, Behrens contended that Wedmore had a duty to refer Behrens to a specialist. Behrens argue that "an attorney has a duty to refer his client to a specialist if under the particular circumstances a reasonable and prudent attorney would do so."
[ .] Behrens unsuccessfully proposed a jury instruction, based on that used in medical malpractice cases, which imposed a qualified duty to refer to a specialist. Our standard of review for the refusal to give a proposed jury instruction in civil cases is abuse of discretion. Luke v. Deal, 2005 SD 6, , 692 NW2d 165, 168. Moreover, the trial court does not err if its instructions properly present the issue to the jury. See State v. Janklow, 2005 SD 25, 693 NW2d 685 (stating that, where the trial court rejected certain instructions because the principles were already covered by other instructions, the trial court did not abuse its discretion).
[ .] Here, the trial court did not give Behrens' specific instruction, but it did instruct the jury on this issue by specifically instructing that an attorney has a duty to advise a client of all information an attorney knows or should know that a reasonable client would attach significance to in deciding to take a course of action. The trial court instructed:
Instruction 47:
An attorney must disclose to the client all material information necessary for the client to make an informed decision regarding the proposed course of action.
Information is material if the attorney knows or should know that a reasonable client would attach significance to
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