In Frederick v. Wallerich, the Minnesota Supreme Court held that an attorney’s later failure to identify an earlier error, leading to a loss of an opportunity to mitigate damages caused by the initial error, could constitute a separate instance of legal malpractice triggering its own limitations period. In Wallerich, the court declined to dismiss an action based on damages incurred in a divorce proceeding. The damages were principally caused by a negligently drafted antenuptial agreement which was later incorporated into a separate legal document (a will). Instead of following Minnesota’s bright-line rule (that damages flowing from a negligently drafted antenuptial agreement accrue on the date of the marriage), the court allowed the plaintiff to allege that the later negligent act—the attorney’s failure to verify the validity of the antenuptial agreement—caused additional damages, thus constituting a wholly separate claim. In doing so, the court introduced a multi-factor framework, including factors that helped the court isolate the two claims.
This case note argues that the multi-factor framework complicates, rather than clarifies the law. Further, this case note recommends that the analysis should focus on whether the plaintiff has sufficiently alleged a separate breach and separate cause of damages. If the plaintiff can state a claim separate from a claim that is barred by a statute of limitations, then his or her claim should survive a motion to dismiss. This note also highlights key features of the holding that may increase transactional attorneys’ overall exposure to malpractice claims. Additionally, the analysis explores a “separate duty” or “scope of representation” approach and the probable effect of a “Frederick Letter” disclaiming particular tasks. Finally, this note offers guidance for transactional attorneys seeking to avoid malpractice lawsuits.