                         This opinion will be unpublished and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                        UNPUBLISHED OPINION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).

                                              14
