How to sue your lawyer in Minnesota.

Minnesota's statute of limitations for legal malpractice is six years under Minn. Stat. § 541.05, subd. 1. The Minnesota Supreme Court confirmed in Antone v. Mirviss, 720 N.W.2d 331 (Minn. 2006), that "the statute of limitations for legal malpractice is six years."

The damage rule

The hard part is the start date. Antone describes three approaches used around the country: the occurrence rule, the discovery rule, and the damage rule. The court said Minnesota has "rejected the discovery rule" and instead uses the damage rule, under which the claim accrues when "some" damage has occurred as a result of the malpractice. The court then held that the clock starts "on the occurrence of any compensable damage, whether specifically identified in the complaint or not."

In Antone, a lawyer drafted a flawed prenuptial agreement. The client did not lose property until a divorce court ruled years later, but the court held the claim accrued on the wedding day, when the client first became exposed to the loss. His suit was too late. In Minnesota, the six-year malpractice clock starts when the lawyer's mistake first causes any compensable damage, even if you do not learn of the mistake until years later.

Continuous representation and concealment

We did not find a Minnesota appellate decision adopting the continuous representation rule for lawyers. In Sabes & Richman, Inc. v. Muenzer, 431 N.W.2d 916 (Minn. Ct. App. 1988), the court declined to reach the argument because it was not raised below, so the question is unsettled. The same opinion noted that ignorance of a claim does not delay accrual absent allegations such as fraud. If a lawyer hid the mistake, raise that with your attorney right away. We found no statute of repose for legal malpractice in Minnesota.

In Jerry's Enterprises, Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811 (Minn. 2006), the Minnesota Supreme Court restated the four traditional elements: "(1) the existence of an attorney-client relationship; (2) acts constituting negligence or breach of contract; (3) that such acts were the proximate cause of the plaintiff's damages; [and] (4) that but for defendant's conduct, the plaintiff would have been successful in the prosecution or defense of the action." The fourth element is the case within a case. Jerry's Enterprises held that "but for" causation applies in transactional matters too, not just lawsuits.

The expert affidavit statute

Minnesota has a certificate of merit rule that covers lawyers. Minn. Stat. § 544.42 applies to actions against a "professional," defined to include a licensed attorney, when expert testimony is needed to make a prima facie case. It requires two affidavits:

• Affidavit of expert review, served with the pleadings. Your attorney must state that the facts were reviewed with a qualified expert who believes the defendant deviated from the standard of care and caused injury. The statute allows a limited exception when review could not reasonably be obtained before a deadline.
• Affidavit of expert identification, served within 180 days after discovery begins, naming each expert witness and summarizing the opinions and grounds.

Under Minn. Stat. § 544.42, failing to serve the affidavit of expert review within 60 days after the defendant demands it results, on motion, in mandatory dismissal with prejudice of each claim that needs expert testimony. People suing without a lawyer are bound by the same requirements. See our expert witness guide.

In Noske v. Friedberg, 670 N.W.2d 740 (Minn. 2003), a man convicted in 1990 later won habeas corpus relief on grounds of ineffective assistance, then sued his trial lawyer. The Minnesota Supreme Court held that until he obtained postconviction relief and had the conviction set aside, his malpractice claim could not have survived a motion to dismiss, so it did not accrue until relief was granted in 1999. In Minnesota, a former criminal defendant's malpractice claim against a defense lawyer does not accrue until postconviction relief is granted. That both limits and protects clients: you need the conviction set aside first, but the six years do not start before then. See criminal defense malpractice.

Minnesota has no single statewide fee arbitration program. According to the director of the Office of Lawyers Professional Responsibility, district bar associations maintain fee arbitration panels, and the process is voluntary on the lawyer's part. When a complaint is only a fee dispute, the Office may dismiss it and give you the contact for your local arbitration committee. In Ramsey County, fee arbitration is free to all participants. See our fee arbitration guide.

If a lawyer took your money, the client protection fund is run by the Minnesota Client Security Board, created by the Minnesota Supreme Court. It covers losses from lawyer dishonesty during an attorney-client relationship, such as stolen settlements, failure to refund fees when little or no work was done, and loans the lawyer never meant to repay. The Minnesota Client Security Fund may reimburse up to $150,000 for money or property lost through a lawyer's dishonesty. It does not cover incompetence, neglect, or fee disputes. See how to get money back from a client protection fund.

Complaints against Minnesota lawyers go to the Office of Lawyers Professional Responsibility (OLPR). An intake attorney reviews each complaint. If it gives a reasonable basis to believe misconduct occurred, the OLPR or a volunteer District Ethics Committee investigates. Otherwise it is dismissed.

The OLPR is candid about its limits: it "cannot represent you, give you any legal advice, effect or change the outcome of a court decision, or recover money for you." It also warns clients not to wait for its investigation before protecting their legal interests. A Minnesota bar complaint cannot recover money for you and does not pause the six-year malpractice deadline. See legal malpractice vs. a bar complaint.

Minnesota does not require lawyers to carry malpractice insurance, but Rule 22 of the Rules of the Supreme Court on Lawyer Registration requires annual reporting of professional liability insurance coverage.

1. Identify the first date the mistake cost you anything. Count six years from there.
2. Request your complete client file in writing. See how to get your case file.
3. Leave time for expert review. The affidavit is due with the complaint.
4. For theft, contact the Client Security Board. For billing, ask your district bar about fee arbitration.

If you think your lawyer's mistake cost you, a free case review takes about two minutes and can connect you with an independent attorney in Minnesota who handles legal malpractice claims.