Great Falls & MontanaLegal Malpractice
Great Falls & Montana Legal Malpractice Lawyers: Attorney Negligence, Lost Cases and Failed Transactions
Boland Aarab PLLP.
Our attorneys: Caitlin Boland Aarab · Samir F. Aarab
If a Montana lawyer’s mistake cost you a case, a deal, property or money, you may have a legal malpractice claim. You must prove the lawyer failed to use reasonable care and skill and that the failure caused you real loss, usually with expert testimony. You generally have 3 years from discovering the error, and never more than 10.
Key Takeaways
- A legal malpractice claim has four elements: duty, breach, injury and proximate cause (Labair v. Carey, 2012 MT 312, ¶ 20, as quoted in Konesky v. Keller, 2021 MT 214N, ¶ 10).
- With limited exceptions, “only expert testimony can establish the standard of care in a legal malpractice case” (Babcock Place, 2003 MT 111, ¶ 21).
- When the error happened in a lawsuit, the client usually must prove the “case within a case”: that the underlying case would have come out better (Lorash v. Epstein, 236 Mont. 21 (1989)).
- The deadline is 3 years from when you discovered or should have discovered the error, but no more than 10 years from the error itself (§ 27-2-206, MCA).
On this page: What it is · Elements · Case within a case · Transactions · Experts · Konesky v. Keller · Deadline · What to do · Why Boland Aarab · FAQ
Believe a lawyer’s mistake cost you? Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.
What is legal malpractice in Montana?
Legal malpractice is a lawyer’s failure to use the care and skill that lawyers ordinarily use, when that failure causes the client harm.
The Montana Supreme Court has long held that an attorney’s failure “to use reasonable care or skill in handling his client’s affairs” may leave the attorney liable to the client for damages (Carlson v. Morton, 229 Mont. 234, 237 (1987), quoted in Konesky ¶ 12; Carlson). Common examples include:
- Missing a deadline, such as a statute of limitations, a notice requirement or an appeal deadline.
- Drafting errors in contracts, deeds, leases, wills, trusts or settlement agreements.
- Failing to protect a client’s stated goals in a transaction.
- Failing to investigate or to name the right defendants.
- Failing to communicate a settlement offer or to obtain the client’s consent.
- Conflicts of interest that lead a lawyer to favor someone else.
A disappointing result is not, by itself, malpractice. Lawyers make judgment calls, and cases are lost for many reasons. The question is whether the lawyer fell below the standard of care, and whether that caused a loss you can measure.
What must you prove in a Montana legal malpractice case?
You must prove each of the four elements the Montana Supreme Court has recognized:
- Duty. The lawyer owed you a duty of care. An attorney-client relationship is sufficient to establish that duty (Konesky ¶ 12).
- Breach. The lawyer breached that duty by failing to use reasonable care and skill.
- Injury. You suffered actual harm.
- Causation. The lawyer’s conduct was a proximate cause of that harm.
(Labair v. Carey, 2012 MT 312, ¶ 20, 367 Mont. 453, 291 P.3d 1160, quoted in Konesky ¶ 10; Labair.)
Whether a legal duty existed is a question of law for the judge (Konesky ¶ 10). Breach, injury and causation are usually questions of fact for the jury, and they are where most of the work lies.
What is the “case within a case”?
When the malpractice happened in a lawsuit, you usually must prove what would have happened in that lawsuit if the lawyer had done the job right. Lawyers call this the “case within a case.”
The Montana Supreme Court has said that the client must show that, “but for” the lawyer’s negligence, the client would have been successful in the prosecution or defense of the underlying action (Lorash v. Epstein, 236 Mont. 21, 24, 767 P.2d 1335 (1989)). In practice, that means two cases are tried at once:
| The underlying case | The malpractice case |
|---|
| Question | Would you have won, and how much would you have recovered or saved? | Did the lawyer fall below the standard of care, and did that cost you the difference? |
| Proof | The evidence that would have been presented in the original case | Expert testimony about what a reasonable lawyer would have done |
| Damages | What the original case was worth, including whether a judgment could have been collected | The loss caused by the lawyer’s error |
For example, if a lawyer missed the deadline to file an injury claim, the malpractice case must prove the injury claim itself: who was at fault, how badly you were hurt and what the claim was worth. We prepare both cases with the same rigor we would bring to the original.
Can you sue for malpractice in a business or real estate deal?
Yes. Malpractice is not limited to litigation. Lawyers who draft contracts, close sales or prepare estate plans owe their clients the same duty of reasonable care.
In a transaction, the “case within a case” looks different. The question is often what protection a careful lawyer would have built into the documents, and what the client lost because it was missing. Those losses can include the value of property, lost rights under a contract, and the cost of litigation against the other side of the deal. Sometimes the client must pursue the other party first, or at the same time, to measure what the lawyer’s error cost.
Do you need an expert witness?
Almost always. With limited exceptions, “only expert testimony can establish the standard of care in a legal malpractice case” (Babcock Place Ltd. P’ship v. Berg, Lilly, Andriolo & Tollefsen, P.C., 2003 MT 111, ¶ 21, 315 Mont. 364, 69 P.3d 1145, quoting Moore v. Does 1 to 25, 271 Mont. 162, 165 (1995)).
An expert in a legal malpractice case is usually an experienced Montana lawyer who practices in the same area. The expert explains to the jury what a reasonably careful lawyer would have done and how the defendant’s work fell short. Because the expert’s testimony is essential, the timing of expert disclosures can decide a case, as Konesky v. Keller shows.
Konesky v. Keller: a rancher, a fire clause and a jury verdict
We represented Thomas Konesky, a rancher who sold his family ranch near Great Falls on the condition that he and his wife could keep living in the farmhouse rent-free. He hired the law firm Church, Harris, Johnson & Williams to handle the sale. The lease that was signed let the buyer end it if the house was destroyed by fire. In 2017 the farmhouse burned, and six days later the buyer terminated the lease. The sale documents required fire insurance payable to both men, but the buyer insured the house only for himself, collected $175,000 and used it to pay his own debt rather than rebuild (Konesky, 2021 MT 214N, ¶¶ 3-5).
The appeal. The district court granted the law firm summary judgment on the malpractice claim. The Montana Supreme Court reversed. It held that the undisputed attorney-client relationship was sufficient to establish the firm’s duty of care, that whether the firm met the standard of care required expert testimony and could not be decided before the deadline for expert disclosures, and that causation remained open while the claims against the buyer were unresolved (Konesky ¶¶ 12-13). The decision is a noncitable memorandum opinion, so it does not serve as precedent, but it applies settled Montana rules. See our appellate case page.
The trial. On remand, the case was tried to a Cascade County jury. On December 8, 2022, the jury returned a verdict of $100,000 against the law firm Church, Harris, Johnson & Williams for legal malpractice and $388,291 against the buyer, a total of $488,291 (Konesky v. Keller).
Konesky illustrates three points that recur in malpractice cases: the duty comes from the attorney-client relationship, the breach is proven through experts, and the loss often has to be measured alongside claims against someone else.
How long do you have to sue a lawyer in Montana?
Generally 3 years from discovery, but never more than 10 years from the error.
Under § 27-2-206, MCA, an action against a Montana-licensed attorney, or a paralegal assistant or legal intern employed by an attorney, based on a professional negligent act, error or omission “must be commenced within 3 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the act, error, or omission, whichever occurs last, but in no case may the action be commenced after 10 years from the date of the act, error, or omission.”
Two practical points follow:
- The 3 years can start before you are sure. The clock runs from when you discovered or reasonably should have discovered the error, not from when a lawyer confirms it.
- The 10-year limit is absolute. Errors in wills, trusts, deeds and long-term contracts may not surface for years. Once 10 years pass from the error, the claim is barred even if no one could have found it.
What should you do if you suspect legal malpractice?
- Request your complete client file in writing from the lawyer or firm.
- Keep every email, letter, bill and document you have.
- Write down a timeline of what you were told and when.
- Protect any deadline in the underlying matter. If your original case or deal can still be saved, that comes first.
- Talk to an independent lawyer promptly. A lawyer who was not involved can review what happened and whether it was below the standard of care.
A complaint to the Office of Disciplinary Counsel is a separate process that addresses a lawyer’s professional discipline. It does not award you damages.
The Boland Aarab Way
We are trial lawyers, and we prepare every serious case as if it will be tried and then appealed. Suing a law firm requires lawyers who are prepared to do exactly that.
- We try malpractice cases. In Konesky v. Keller, we won reversal in the Montana Supreme Court and then tried the case to a Cascade County jury, which returned a $100,000 legal malpractice verdict against the law firm and $488,291 in total.
- We protect verdicts. In a rear-end crash case, the Montana Supreme Court reinstated a $168,500 jury verdict for our client (Voegel v. Salsbery, 2023 MT 137).
- We try cases. Our firm has tried more than a dozen jury trials, in Cascade, Phillips, Meagher and Yellowstone Counties, and our attorneys have spent more than 4,000 hours in the courtroom. See our results.
- We know federal and appellate court. Our attorneys have handled more than 40 cases in the U.S. District Court for the District of Montana over nine years, and Samir Aarab has argued twice before the Ninth Circuit. The Boland Aarab appellate record reaches back to 1977.
- You work with the lawyers. Caitlin Boland Aarab and Samir Aarab handle your case themselves. Both are members of the American Association for Justice and the Montana Trial Lawyers Association; Caitlin serves as an AAJ Governor and on the MTLA Board.
Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.
Where do we handle legal malpractice cases?
Our office is at 18 6th Street North, Suite 200, Great Falls, MT 59401. We handle legal malpractice cases across Montana, including Great Falls, Billings, Missoula, Helena, Bozeman, Butte and Kalispell. We also handle medical malpractice and insurance bad faith cases.
Where do we handle legal malpractice cases?
We are based at 18 6th Street North, Suite 200, in Great Falls, and handle legal malpractice cases across Montana. Our attorneys travel for depositions, hearings and trial. For local information, see our pages for Billings legal malpractice lawyers, Missoula legal malpractice lawyers, Helena legal malpractice lawyers, Bozeman legal malpractice lawyers, Butte legal malpractice lawyers, Kalispell legal malpractice lawyers and Havre legal malpractice lawyers.
Frequently Asked Questions
Can I sue my lawyer for losing my case? Only if the lawyer failed to use reasonable care and skill and that failure caused the loss. Losing alone is not malpractice; you generally must also prove you would have won the underlying case.
What are the elements of legal malpractice in Montana? Duty, breach, injury and proximate cause (Labair v. Carey, 2012 MT 312, ¶ 20). An attorney-client relationship is enough to establish the duty.
Do I need an expert to prove legal malpractice? Usually. With limited exceptions, only expert testimony can establish the standard of care (Babcock Place, 2003 MT 111, ¶ 21).
What is the statute of limitations for legal malpractice in Montana? 3 years from when you discovered or reasonably should have discovered the error, but no more than 10 years from the error (§ 27-2-206, MCA).
Can I sue a lawyer for a mistake in a contract or real estate deal? Yes. Transactional lawyers owe the same duty of reasonable care. In Konesky v. Keller, a Cascade County jury returned a $100,000 legal malpractice verdict against the law firm that handled a ranch sale.
Will Montana lawyers really sue another law firm? We will. We have taken a legal malpractice claim against a law firm through the Montana Supreme Court and a jury trial.
Is filing a bar complaint the same as a malpractice claim? No. A complaint to the Office of Disciplinary Counsel addresses professional discipline. A malpractice lawsuit seeks compensation for your losses.
What should I get from my former lawyer? Your complete client file, including correspondence, drafts, pleadings and billing records. Request it in writing.
Talk to a Great Falls Legal Malpractice Lawyer
Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.
Sources: § 27-2-206, MCA · Konesky v. Keller, 2021 MT 214N (official opinion) · Labair v. Carey, 2012 MT 312 · Babcock Place Ltd. P’ship v. Berg, Lilly, Andriolo & Tollefsen, P.C., 2003 MT 111 · Lorash v. Epstein, 236 Mont. 21 (1989) · Carlson v. Morton, 229 Mont. 234 (1987)
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.
