Professional Negligence Law Reporter

A Michigan appellate court held that a firm and its attorney may be liable to a former client for negligence where the parties’ retainer agreement allegedly was ambiguous regarding the nature of the representation.

Dennis Tubbergen learned he was being investigated regarding an investment fraud scheme. He retained Dykema Gossett, PLLC, and its attorney, and was sent an engagement letter outlining the terms of the retainer agreement. The firm then began reviewing materials and providing information to the government in response to a government subpoena. Several years later, Tubbergen was indicted on multiple counts of wire fraud. The firm was paid additional money and began performing more work on Tubbergen’s case. He subsequently informed the attorney that he no longer wanted him and the firm to represent him.

Tubbergen sued the firm and two of its attorneys, alleging negligence. The defense moved for summary judgment, arguing that the plaintiff’s claims were time-barred in that the engagement letter limited their representation of the plaintiff to the government’s investigation. The trial court granted the motion.

Reversing, the court noted that a legal negligence claimant must bring suit within two years of when the negligence claims first accrued or arose. Here, the court found, the engagement letter states that the defendants would represent the plaintiff regarding “the above matter” but does not describe the term “matter” in the body of the letter. The letter also refers to potential continuing representation upon indictment, the court said. Thus, the court concluded, the parties’ contract outlined in the retainer agreement was ambiguous and there are questions of fact regarding the parties’ intentions.

Consequently, the court remanded, concluding that the trial court had erred in granting summary judgment for the defense.

Citation: Tubbergen v. Dykema Gossett, PLLC, 2021 WL 5976483 (Mich. Ct. App. Dec. 16, 2021).

Plaintiff counsel: Michael Schwartz, Farmington Hills, Mich.; and William T. Dowd and Alex R. Lumaghi, both of St. Louis.