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Podiatrist's malpractice claim against his lawyer will go to trial

Randy Bernstein entered into another podiatrist to practice podiatry as "50/50" partners in 1991.  Because the partner, Kenneth Poss, had been barred from practice for insurance fraud, he was to conduct the business affairs of the corporation and Bernstein was to see patients.  They retained counsel, Barry Bess, to manage their corporate affairs.  In 2008, Bernstein sued Bess, alleging that he had breached his fiduciary duty to Bernstein by creating a legal relationship that made Bernstein only an employee with no equity interest in the podiatry practice.

The trial judge ruled that Bess should be summarily dismissed from the suit because the statute of limitations had expired on Bernstein's claims of professional negligence and breach of fiduciary duty.  Bernstein appealed and the Court held that the case should be reinstated and go to the jury.  The Court noted that under the "last treatment rule" which now applies to all professionals except medical professionals, the statute of limitations did not run until two years after Bess' last representation of Bernstein.

Bess attempted to argue that Bernstein's informal consultation with an attorney friend eliminated Bess' attorney-client relationship as of that date, however, the Court rejected this argument.  It held that Bess' 2006 letter to Bernstein outlining Bess' alleged obligations to his "employing" partnership constituted the legal termination of the parties' relationship.  The Court also pointed out that breach of a fiduciary duty is a claim separate and apart from professional negligence.  By statute, action on the former claim must be brought within three years of within two years of discovery of the breach.


Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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