This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-1771
Joel Wells, Appellant,
vs.
Rick E. Mattox, Respondent.
Filed June 13, 2016 Affirmed Jesson, Judge
Dakota County District Court File No. 19HA-CV-14-2062
Keith D. Johnson, Law Offices of Keith D. Johnson, P.L.L.C., Minneapolis, Minnesota (for appellant)
Rick E. Mattox, Prior Lake, Minnesota (attorney pro se)
Considered and decided by Jesson, Presiding Judge; Kirk, Judge; and Klaphake,
Judge.
UNPUBLISHED OPINION
JESSON, Judge
Appellant Joel Wells argues that the district court erred by dismissing his legal-
malpractice case against his former attorney, respondent Rick Mattox, based on the
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. failure to timely file an expert-witness affidavit under Minn. Stat. § 544.42 (2014) to
support his claims. He argues that expert testimony is not required because a lay jury
could adequately evaluate his claims for breach of contract, breach of fiduciary duty, and
negligent referral. Because Minnesota law does not recognize a cause of action for
negligent referral, and because we conclude that affidavit-supported expert testimony is
necessary for the determination of appellant’s claims, we affirm the district court’s order
of dismissal.
FACTS
In 2001, Wells was charged in Dakota County district court with possession of
child pornography. In 2003, he hired Mattox as his attorney. Wells pleaded guilty to that
offense as a gross misdemeanor. In 2004, Eagan police searched Wells’s home, and he
was charged in Dakota County district court with dissemination and possession of child
pornography. Mattox again represented Wells, including appealing by certified question
a discovery ruling adverse to the defense. State v. Wells, No. A06-1942 (Minn. App.
Sept. 25, 2007), review denied (Minn. Dec. 11, 2007).
In December 2007, Wells was indicted in federal court on charges of possession
and receipt of child pornography. Wells hired Mattox to represent him and paid a
retainer fee of $30,000. However, in January 2008, Wells retained additional attorneys
Daniel Gerdts and Howard Kieffer. Wells alleges that Mattox recommended Kieffer as
the best child-pornography attorney in the country. Mattox alleges that he gave Wells
several attorney names at Wells’s request, but he did not make a legal referral to Kieffer
and could have handled the matter himself.
2 In January 2008, on Mattox’s motion, Kieffer was admitted pro hac vice to the
Minnesota federal district court to assist in Wells’s defense; Kieffer was also admitted to
the Eighth Circuit Court of Appeals. But, in about May 2008, Wells began to question
whether Kieffer was a licensed attorney. An investigation revealed that Kieffer, who had
represented at least 18 federal criminal defendants and filed motions in 12 states, had
previous felony convictions, and he admitted that he did not have a law degree and was
not licensed in any state. Although he was admitted to practice in several federal
jurisdictions, they revoked his admission. He was disbarred in North Dakota. In 2009,
he was convicted in North Dakota of mail fraud and making false statements to the court;
he was also prosecuted in Colorado and sentenced to prison. Wells recovered $10,000 of
$37,000 that he had paid to Kieffer.
In June 2008, at Wells’s request, Mattox withdrew from representing Wells in the
federal proceeding. Wells requested an accounting, which Mattox provided, along with a
return of $9,000 in unearned fees from the initial retainer. Wells contended that Mattox
breached an agreement to refund Wells an additional $3,500 in fees. In 2009, Wells
pleaded guilty in federal court to one count of possessing child pornography; in 2011, he
was sentenced to 84 months in prison.
In December 2013, Wells commenced this legal-malpractice action against
Mattox. He alleged that Mattox negligently or fraudulently misrepresented to him that
photos of naked children who were not engaging in sexual activity did not constitute
child pornography, which led Wells to decline a plea offer in the 2004 state proceeding;
that Mattox breached a duty of due care by referring Wells to Kieffer without
3 investigating whether Kieffer was licensed or competent as an attorney; and that Mattox
breached a contract to refund a full $12,500 in fees, in exchange for Wells’s agreement to
consent to Mattox’s withdrawal.
Mattox filed an answer alleging that the complaint failed to state a claim on which
relief could be granted. He asserted that he did not advise Wells that he could possess
photographs of naked children; that he did not refer Wells to Kieffer, but Wells chose to
hire Kieffer; and that he offered Wells the choice of a $12,500 lump sum or an
accounting with a refund of the unearned portion of the flat fee, and Wells chose the
latter option. Mattox also alleged that Wells failed to provide affidavits of expert review,
as required by Minn. Stat. § 544.42.
In May 2014, Wells moved for an extension of the time to file an expert-
identification affidavit under Minn. Stat. § 544.42, subd. 4(a), arguing that he was in
solitary confinement and acting pro se and he was unable to contact his expert or provide
relevant documentation to that person. He renewed the motion in June 2015 after his
release. Mattox moved to dismiss the matter with prejudice for failure to timely file an
expert-identification affidavit. He argued that all three counts required expert testimony
to establish a prima facie case and pointed out that Wells had been represented by seven
attorneys in the federal matter and pleaded guilty to possessing child-pornography videos
with explicit sexual content. Mattox also submitted a copy of Wells’s initial expert-
review affidavit, submitted in January 2014, alleging that an expert had reviewed the
case, but he argued that that affidavit was not credible.
4 After a hearing, the district court issued an order and judgment dismissing Wells’s
claims with prejudice. The district court determined that: (1) although Wells commenced
his action in December 2013, through the date of the hearing in August 2015, he had not
served, filed, or produced an expert-identification affidavit satisfying statutory
requirements; (2) this period was far beyond any statutory deadline; (3) his complaint of
lack of access to his case records arose more than six months after he affirmed that an
expert had reviewed the case; and (4) his arguments and pleadings lacked credibility.
This appeal follows.
DECISION
Wells argues that the district court erred by dismissing his malpractice action
against Mattox based on the failure to file an affidavit of expert review because expert
testimony is not necessary for consideration of his claims. This court reviews the
dismissal of a malpractice action for procedural irregularities, including failure to comply
with expert-review requirements, under an abuse-of-discretion standard. Guzick v.
Kimball, 869 N.W.2d 42, 46 (Minn. 2015). But the issue of whether expert testimony is
required to establish a prima facie case in a legal malpractice action presents a question
of law, which we review de novo. Id. at 46-47.
A prima facie case of legal malpractice requires that a plaintiff establish: (1) the
existence of an attorney-client relationship; (2) acts that constitute the alleged negligence
or breach of contract; (3) that those acts were the proximate cause of the plaintiff’s
damages; and (4) that, but for the defendant’s conduct, the plaintiff would have been
successful in the prosecution or defense of the action. Id. at 47. If a plaintiff intends to
5 use expert testimony to establish a prima facie case of professional malpractice, a party
must serve two affidavits of expert review. Minn. Stat. § 544.42, subd. 2. First, if there
has been no determination of waiver or good cause, the party must serve an affidavit
stating that counsel has reviewed the facts with “an expert whose qualifications provide a
reasonable expectation that the expert’s opinions could be admissible at trial,” and that, in
the expert’s opinion, “the defendant deviated from the applicable standard of care and by
that action caused injury to the plaintiff.” Id., subd. 3. Second, within 180 days, the
party must serve an affidavit identifying any expert that the party intends to call as a
witness, with the substance of that expert’s testimony and a summary of the grounds for
the expert’s opinions. Id., subd. 4. A party acting pro se is subject to the same affidavit
requirements as a party represented by an attorney. Id., subd. 5.
“Expert testimony is generally required to establish the standard of care applicable
to an attorney whose conduct is alleged to have been negligent and further to establish
whether the conduct deviated from that standard.” Jerry’s Enters., Inc. v. Larkin,
Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811, 817 (Minn. 2006) (quotation omitted).
But this general rule is subject to the exception that, when a lay jury can adequately
evaluate the attorney’s conduct without an expert opinion, expert testimony is not
necessary. Hill v. Okay Constr. Co., 312 Minn. 324, 337, 252 N.W.2d 107, 116 (1977).
Whether expert testimony is required in a legal-malpractice action depends on the nature
of the question that the trier of fact must decide and on whether specialized or technical
knowledge will assist in that decision. Fontaine v. Steen, 759 N.W.2d 672, 677 (Minn.
App. 2009).
6 Wells argues that he was not required to serve expert-review affidavits under
section 544.42 because each of his malpractice claims could be adequately evaluated by a
jury without expert testimony. We address each claim in turn.
Negligent referral
Wells first argues that expert testimony is not required for a jury to consider his
claim that Mattox negligently referred Wells to Kieffer. But this argument presupposes
that Minnesota law recognizes a legal-malpractice cause of action based on an attorney’s
negligent referral of a client to another attorney.1 As discussed below, we conclude that
current Minnesota law does not recognize such a cause of action and that, even if it did,
expert-review affidavits would be necessary to support the claim.
Under the common law, a party generally owes no duty to warn or protect another
person who may be injured by a third party unless the “defendant stands in some special
relationship to either the person whose conduct needs to be controlled or to the
foreseeable victim of that conduct.” Cairl v. State, 323 N.W.2d 20, 25 n.7 (Minn. 1982).
Special relationships imposing such a duty include parent-child, common carrier-
passenger, master-servant, landowner-invitee, and certain custodianships. Olson v. Ische,
343 N.W.2d 284, 288 (Minn. 1984). But Minnesota has not extended this reasoning to
hold an attorney liable in negligence for referring a client to another lawyer, who then
commits malpractice.
1 While Kieffer held himself out as an attorney and was admitted to practice before federal courts in several states, the fact that he was not licensed in any state does not change our analysis since the standard of care (if applicable) focusses on the referring attorney’s knowledge and conduct. See generally 1 Ronald E. Mallen, Legal Malpractice, § 5.51, at 583 (2016 ed.).
7 Wells urges this court to adopt the reasoning of the New Jersey federal district
court, which has held that an attorney who refers a matter to another attorney has an
affirmative duty to exercise care to ensure that the second attorney is competent and
trustworthy. Tormo v. Yormark, 398 F. Supp. 1159, 1169-70 (D.N.J. 1975). In the 40
years since Tormo, few appellate courts have ruled on whether a cause of action exists for
negligent referral by an attorney.2 Those that have, have taken various approaches to the
issue. See, e.g., Christensen, O’Connor, Garrison & Havelka v. State, 649 P.2d 839, 842
(Wash. 1982) (holding that “[r]eferring law firms are neither liable to their clients for . . .
malpractice nor can they recover from the engaged law firm for such malpractice”); Noris
v. Silver, 701 So.2d 1238, 1241 (Fla. Dist. Ct. App. 1997) (affirming dismissal of a
negligent-referral claim when the referring attorney did not know that the referred
attorney would commit malpractice, but noting possibility of liability based on fee-
splitting). New York courts have taken a flexible approach, concluding that liability
depends on such factors as whether the referring and receiving attorneys practice in the
same state or the same subject area and whether the referring attorney has an ongoing
supervisory role. Compare Broadway Maint. Corp. v. Tunstead & Schecter, 487
2 Several commentators have discussed the policy issues inherent in imposing such liability. See generally Bruce Ching, Attorney Referral, Negligence, and Vicarious Liability, 33 S. Ill. U. L.J. 217, 223 (2009) (noting that courts in Michigan and Pennsylvania have expressly declined to impose liability for negligent referral); Barry R. Temkin, Can Negligent Referral to Another Attorney Constitute Legal Malpractice?, 17 Touro L. Rev. 639 (2001) (observing that although an attorney must use due care in the selection of outside counsel, standard of care for that obligation in New York is minimal); Andrew W. Martin, Jr., Legal Malpractice: Negligent Referral as a Cause of Action, 29 Cumb. L. Rev. 679, 699-700 (1999) (discussing proposed standard for breach of duty of care as knowledge that the referred attorney is likely to commit malpractice).
8 N.Y.S.2d 799, 800-01 (App. Div. 1985) (holding that, in the absence of assuming a
supervisory role, general counsel could not be held liable for malpractice in connection
with its referral to out-of-state trial counsel, who failed timely to commence a lawsuit)
with Reed v. Finkelstein, Levine, Gittlesohn & Tetenbaum, 756 N.Y.S.2d 577, 578 (App.
Div. 2003) (holding that an issue of fact existed as to referring attorneys’ responsibilities
in malpractice action when they practiced in the same state and specialized in that same
subject area as referred attorney).
No Minnesota case addresses this cause of action. The Minnesota Rules of
Professional Conduct provide that it is professional misconduct for an attorney to
“knowingly assist or induce another to [violate the rules], or do so through the acts of
another,” Minn. R. Prof. Conduct 8.4 (a). But “[v]iolation of a rule should not itself give
rise to a cause of action against a lawyer nor should it create any presumption in such a
case that a legal duty has been breached.” Minn. R. Prof. Conduct preamble cmt. 20.
“Whether a lawyer may be liable civilly or criminally for another lawyer’s conduct is a
question of law beyond the scope of these rules.” Minn. R. Prof. Conduct 5.1 cmt. 7.
We recognize that “[the supreme] court has the power to recognize and abolish
common law doctrines . . . as well as to define common law torts and their defenses.”
Larson v. Wasemiller, 738 N.W.2d 300, 303 (Minn. 2007). But the task of examining
these policy considerations and potentially extending existing law falls to the supreme
court or the legislature, not to this court. Tereault v. Palmer, 413 N.W.2d 283, 286
9 (Minn. App. 1987), review denied (Minn. Dec. 18, 1987).3 With this background, we
cannot conclude that current Minnesota law authorizes a cause of action based on an
attorney’s negligent referral.
We further note that, even if a cause of action for negligent referral did exist in
Minnesota, it would require expert testimony to establish the standard of care and its
breach. If such a cause of action applies, the standard of care for an attorney referring to
another lawyer “depends upon the circumstances of the particular subject matter” and
requires “facts [indicating] that the lawyer knew or should have known that the referral
was not appropriate.” Mallen, supra, § 5.51, at 583. Without expert testimony, it is
difficult to establish the scope of an attorney’s duty to investigate the background of
another attorney to whom a referral is made. An expert affidavit must also “include an
outline of the chain of causation between the violation of the standard of care and the
plaintiff’s damages.” Tefeteller v. Univ. of Minn., 645 N.W.2d 420, 428 (Minn. 2002).
Therefore, in this case Wells would be required to produce expert testimony showing that
he incurred damages resulting from Mattox’s referral of Kieffer to handle his criminal
case. Because current Minnesota law does not provide for recovery on Wells’s negligent-
referral claim and an expert affidavit would be necessary if a cause of action did exist, the
district court did not err by dismissing it.
3 To expand the law to include a cause of action for negligent referral by an attorney would require examination of a host of policy considerations. Should an attorney with specialized skills be held to a higher standard of care? Should out-of-state referrals be treated differently? How should the greater accessibility of information via the internet factor into a potential duty? Would a new, broad duty have the consequence of fewer referrals by attorneys, which could create hardships for clients?
10 Breach-of-fiduciary-duty / constructive-fraud claim
Wells also asserts a breach-of-fiduciary-duty claim based on constructive fraud
against Mattox. He alleges that Mattox breached a fiduciary duty by misinforming him
that, under Minnesota law, material depicting naked children who are not engaged in
sexual conduct does not constitute child pornography and that Mattox was “100% sure”
that Wells would prevail at trial. Wells argues that, based on that misinformation, he
declined a plea offer in the earlier state court proceeding and chose to continue with his
case.
An attorney owes a fiduciary duty “to represent the client with undivided loyalty,
to preserve the client’s confidences, and to disclose any material matters bearing upon the
representation of these obligations.” Rice v. Perl, 320 N.W.2d 407, 410 (Minn. 1982)
(alteration in original) (quotation omitted). The term “constructive fraud” is essentially
another way to characterize a breach of fiduciary duty, which is not actual fraud, “but
conduct that the law treats as fraud, irrespective of the actor’s intent or motive.” Perl v.
St. Paul Fire & Marine Ins. Co., 345 N.W.2d 209, 213 (Minn. 1984). A claim for breach
of fiduciary duty is closely related to a claim of professional negligence and requires a
plaintiff to demonstrate a fiduciary duty, breach of that duty, causation, and damages.
See Padco, Inc. v. Kinney & Lange, 444 N.W.2d 889, 891 (Minn. App. 1989) (holding
that a complaint alleging the elements of a legal malpractice claim sufficiently alleged the
elements of a breach-of-fiduciary-duty claim), review denied (Minn. Nov. 15, 1989).
Therefore, Wells’s breach-of-fiduciary-duty claim essentially restates his malpractice
claim in another form.
11 Wells maintains that Mattox failed to disclose to him that the Minnesota child-
pornography statute prohibits materials depicting the “lewd exhibition of the genitals” of
minors, even if the minors are not engaged in sexual activity. See Minn. Stat. § 617.246,
subd. 1(e)(4) (2004). And he argues that the plain meaning of that statute may be readily
understood by a lay jury, so that expert testimony is not required for consideration of his
breach-of-fiduciary-duty claim.4 But to succeed on that claim, Wells must establish that
Mattox’s discussions with him breached an attorney’s standard of care for
communicating with a client. Wells alleges, among other things, that Mattox represented
that Wells would prevail at trial. The standard of care relating to an attorney’s
communication with a client is a subject for expert testimony. Schmitz v. Rinke, Noonan,
Smoley, Deter, Colombo, Wiant, Von Korff & Hobbs, Ltd., 783 N.W.2d 733, 739-40
(Minn. App. 2010), review denied (Minn. Sept. 21, 2010). The issue of whether Mattox
breached the standard of care in his communications with Wells, including advising him
in the context of plea negotiations, requires expert testimony to help the fact-finder
resolve the case.
Wells acknowledges that expert testimony may be necessary to prove proximate
causation. See, e.g., Fiedler v. Adams, 466 N.W.2d 39, 42-43 (Minn. App. 1991) (noting
expert testimony on proximate causation when plaintiffs asserted that attorney
negligently withheld information material to their decision to pursue or abstain from a
4 Mattox argues that this claim raises the issue of whether he provided constitutionally ineffective assistance. While ineffective-assistance and legal-malpractice claims are closely related in the criminal context, they serve different purposes, and a determination that ineffective assistance was provided is not conclusive as to a legal-malpractice claim in a civil case. Noske v. Friedberg, 670 N.W.2d 740, 746 (Minn. 2003).
12 certain course of action), review denied (Minn. Apr. 29, 1991). He argues, however, that
“[b]y limiting his claim for damage for this breach of fiduciary duty and constructive
fraud to the forfeiture of fee compensation, attorney expert opinion is unnecessary.” But
he cites no authority for this proposition. “When a claim is predicated on conduct subject
to a professional standard of care, expert evidence is generally required to support the
claim.” Blatz v. Allina Health Sys., 622 N.W.2d 376, 388 (Minn. App. 2001), review
denied (Minn. May 16, 2001). Because Wells’s breach-of-fiduciary-duty claim requires
expert evidence on the standard of care for an attorney’s communication with a client, we
conclude that the district court did not abuse its discretion by dismissing this claim based
on failure to file an expert affidavit.
Breach-of-contract claim
Finally, Wells alleges that Mattox committed legal malpractice by breaching a
contract to repay Wells an additional $3,500 as a partial refund of Mattox’s retainer fee,
after Wells agreed to allow Mattox to withdraw from representing him in the federal
criminal proceeding. Wells argues that this claim could adequately be considered by a
lay jury without expert testimony because it is a simple claim for breach of contract.
We disagree. Mattox’s answer alleges that, instead of a $3,500 lump sum, Wells
chose a refund for the unearned portion of the flat fee, and that refund was based on an
accounting. The resolution of the breach-of-contract claim requires an examination of
that accounting, which implicates Mattox’s performance in earning or incurring fees
during his representation of Wells. See Minn. R. Prof. Conduct 1.16(d) (stating that
when an attorney’s representation is terminated, the attorney shall “refund[] any advance
13 payment of fees or expenses that has not been earned or incurred”). Here, the alleged
accounting and ethical violations are intertwined. The Minnesota Lawyers Professional
Responsibility Board considered complaints filed by Wells and his girlfriend against
Mattox and dismissed those complaints. Although the record does not contain the
confidential terms of those proceedings, Wells alleges that they involved the terms of
Mattox’s representation, and he told the district court that the Board determined that he
should be reimbursed $9,000. We conclude that, on this record, where accounting and
ethical claims intermix, Wells’s claim falls within the general rule that expert testimony
is required in legal-malpractice actions.5 See Jerry’s Enters., Inc., 711 N.W.2d at 817.
Therefore, the district court did not abuse its discretion by dismissing this claim based on
failure to timely file an expert affidavit.
Because no cause of action exists in Minnesota for legal malpractice based on a
lawyer’s referral to another attorney and all of his claims require expert testimony, the
district court did not abuse its discretion by dismissing Wells’s claims.
Affirmed.
5 Although there is a distinction between an ethical claim and the existence of a malpractice cause of action, a lawyer’s violation of a rule of professional conduct may “‘be evidence of breach of the applicable standard of conduct’” to support a malpractice claim. Leonard v. Dorsey & Whitney LLP, 553 F.3d 609, 628 (8th Cir. 2009) (quoting Minn. R. Prof. Conduct, Scope).