¶1concurring in the result.
¶2[¶ 27] I concur in the result. I agree with the majority opinion that the instructions and the special verdict erroneously permitted the jury to consider a good-faith defense for returning a client’s money. I also agree this action is one for professional malpractice and the prudent investor rule does not apply. I write separately because I am concerned that the majority opinion does not clearly set forth the law applicable to legal malpractice. The elements of a legal malpractice claim for negligence are the existence of an attorney-client relationship, a duty to the client, a breach of that duty by the attorney, and damages to the client proximately caused by breach of that duty. Wastvedt v. Vaaler, 430 N.W.2d 561, 564-65 (N.D.1988); Larson v. Norkot Mfg., Inc., 2002 ND 175, ¶ 10, 653 N.W.2d 33 (quotation omitted). The verdict form in the present case should ask whether there was an attorney-client relationship at all times relevant; whether the attorney committed legal malpractice by either (1) providing negligent advice or (2) failing to return the client’s money upon request; and whether the attorney’s negligence proximately caused damage to the client and, if so, in what amount. Conceivably the client’s fault could be compared to the attorney’s fault if there is evidence of such, i.e., disregard for the advice of the attorney. Wastvedt, at 564. It is fundamental that “before an *83attorney’s advice or conduct can be the proximate cause of damage, the [client] must establish that the advice or conduct falls below the applicable standard of care and constitutes therefore a breach of duty.” Id. at 565. “The standard of care or duty to which an attorney is held in the performance of professional services is that degree of skill, care, diligence, and knowledge commonly possessed and exercised by a reasonable, careful, and prudent lawyer in the practice of law in the state.” Id.We have said that, generally, expert testimony is necessary to establish the standard of care and whether an attorney deviated from that standard of care. Id.If the attorney’s conduct is so egregious and obvious that a layperson can evaluate the breach of duty, then there is an exception to the requirement of expert testimony. Id.“It is well established that an attorney is liable for all losses caused by his failure to follow with reasonable promptness and care the lawful instructions of his client.” Olson v. Fraase, 421 N.W.2d 820, 829 (N.D.1988).
¶3[¶ 28] It is based on this law that the case should be tried on remand. I, therefore, respectfully concur in the result.
¶4[¶ 29] Mary Muehlen Maring