MSC to determine when a legal malpractice claim accrues

The Michigan Supreme Court granted leave to appeal in Bernstein v. Seyburn, Kahn, Ginn, Bess, & Serlin PC, No. 149032, to determine whether Bernstein’s malpractice claim accrued at the time Bess discontinued general legal services to Bernstein and whether those services were matters out of which the malpractice claim arose.

Plaintiff Randy Bernstein and Kenneth Poss are two podiatrists who previously incorporated several podiatry companies together. In 1991, Poss offered to form a new company with Bernstein, where Bernstein would provide podiatric services and Poss would provide management and administrative services. They agreed to share all profits equally. On Poss’s recommendation, Bernstein retained Defendant Barry Bess, who performed all legal work for the partners. At the time, Bernstein believed that he had a fifty percent interest in all business ventures. However, Bernstein later discovered that he only had a two percent interest. Bernstein informed Poss that he no longer wanted to continue with the partnership. On April 28, 2006, Bess wrote Bernstein a letter outlining Bernstein’s legal obligations to the companies. Subsequently, in June 2006, Bernstein discovered that he did not have an equity interest in one of the companies. Bernstein filed a legal malpractice claim against Bess.

Following discovery, the trial court granted Bess’s motion for summary disposition pursuant to MCR 2.116(C)(7) because it found that the statute of limitations time-barred Bernstein’s legal malpractice claim. The Court of Appeals reversed the trial court’s order and held that Bernstein’s legal malpractice claim is not time barred. The court reasoned that Bess sent a letter outlining Bernstein’s legal obligations to the companies, which was the last date on which Bess rendered legal services to Bernstein. The Complaint was filed on April 28, 2008, exactly two years after the date of the letter, which is timely under MCL 600.5805(6).

The Michigan Supreme Court will consider whether Bernstein’s claim for legal malpractice accrued at the time Bess discontinued the provision of generalized legal services to Bernstein and whether those services were “the matters out of which the claim for malpractice arose” under MCL 600.5838, see Levy v Martin, 463 Mich 478 (2001). The Court also invited the State Bar of Michigan Professional Ethics Committee to file a brief on the matter.