We had the opportunity to be brought in as co-counsel in an attorney malpractice case where the trial judge ruled that the attorney’s conduct was such that it was appropriate to go forward with discovery on a claim for punitive damages. In South Dakota, you can only go forward with a claim for punitive damages if you can make an initial showing that there is a reasonable basis to believe that the defendant’s conduct was willful, wanton, or malicious.

In Friske, et al. v. Hogan, 2005 S.D. 70, 698 N.W.2d 526, the South Dakota Supreme Court, on June 8, 2005, ruled for the clients of Schoenbeck Law that an attorney may owe a duty to a non-client third party, which ruling builds on the Supreme Court decision entered in Chem Age Industries, Inc. v. Alan F. Glover, 2002 S.D. 122, 652 N.W.2d 756, which is discussed below.

Until now in South Dakota, an attorney who didn’t do the work necessary to achieve his client’s estate planning objectives wasn’t accountable to the surviving family members that were the victims. Since the problem only arises after the client dies, and if the victims can’t sue the attorney, one court described this scenario as being able to bury your mistakes!

This case put South Dakota squarely with the majority of states that hold attorneys responsible when they are negligent in doing wills and estate planning documents. The victims in this case lost half of the family farm that their father was trying to leave them. The farmer hired an attorney who drew a will to leave the farm to the children. Instead, half of the farm went to somebody else. The surviving children sued the attorney. The attorney wanted the case tossed out, claiming he owed no duty to the intended beneficiaries of the will he drew. The Supreme Court said he did. This is a decision that is good for the public and for the bar association. It holds professionals accountable for the work they are hired to do, encourages good legal work, and punishes shoddy legal work.

Our office prevailed in a decision handed down by the South Dakota Supreme Court on attorney malpractice: Chem-Age Industries, Inc. v. Alan F. Glover, 2002 S.D. 122, 652 N.W.2d 756. The trial judge had dismissed the suit on summary judgment, and our clients appealed. On appeal, the Supreme Court permitted the case to go forward to trial on claims of negligence, aiding or assisting the breach of fiduciary duty, conversion, and exemplary damages.