marriage-734617_1920 (1)Update (March 10, 2017): Excellent argument of the lawsuit, discussed below, earlier this week before the Minnesota Supreme Court.

The concerns of the various justices of the Minnesota Supreme Court are clear.

On the one hand, if Anton v. Mirviss is overruled, what is the limiting principle? How long, effectively, would the statute of limitation be for legal malpractice? Would the rule be limited to legal malpractice cases? If not, why not?

On the other hand, many of the justices probed whether a lawyer’s second-in-time bad legal advice can really be immune from a negligence claim if the initial bad legal advice is outside the statute of limitation. Justice Lillehaug posed this scenario repeatedly with slight alterations. (What if the second-in-time lawyer is a different lawyer? A different lawyer at the same law firm? A doctor giving bad medical care following up on the doctor’s earlier negligent care?)

We’ll see where the case ends up and we will only point out that, as a practical matter, the law as set out in Anton v. Mirviss, the so-called “some damage rule,” leaves Minnesota clients with no recourse for legal malpractice in many circumstances when they would have absolutely no realistic chance of detecting it within the statute of limitations.

So long as the fuse is long enough on the bomb, the bomber/lawyer not only gets away scot-free with the bombing and gets to keep the money billed for it too!

Original Post (November 4, 2016): Imagine that you hire a lawyer to draw you up a “pre-nup” (also known as an “ante-nuptial agreement”) before your marriage. Seven years later, your marriage ends in divorce and the pre-nup is thrown out of court in the divorce proceeding because your lawyer incompetently drafted it in the first place.

Under existing Minnesota law, a malpractice claim against the bad lawyer would be barred by the six-year statute of limitations. Antone v. Mirviss.

I believe that the Antone decision is one of the least defensible appellate decisions I have ever read. I find it staggeringly unfair and nonsensical. Aside from lawyers who might think that any decision that favors them is, by definition, a good decision, I have never heard any argument in favor of the result in Antone. Justice Hanson’s dissent in Antone (joined by Justices Page and Meyer) should have been the majority decision rather than the dissent.

What are clients supposed to do to avoid the risk of bad legal advice and the risk of a bar to any remedy when, over time, they are held to have violated the law or lost a legal right based on bad legal advice?

Maybe Mr. Antone should have gotten divorced sooner? Maybe Mr. Antone and other Minnesotans hiring lawyers should hire two or three at a time to insure against getting bad advice (since they might not be able to rely on a claim for professional malpractice when they suffer later harm)? Should Mr. Antone have gone back to his lawyer every five years so the lawyer could re-advise him on the validity of the lawyer’s original legal work?

Or, here’s another solution: OVER-RULE ANTONE v. MIRVISS.

I hope that help is on the way. This past week the Minnesota Supreme Court granted a petition for review in a case that could put the Antone decision in the cross-hairs: Frederick v. Wallerich, et al. (Linked here is the petition for Minnesota Supreme Court review and here is the opposition to the petition.)

The facts in Frederick’s case seem even stronger than those in the Antone case. After Frederick’s marriage, he repeatedly checked in with his lawyer as to the validity of the pre-nup (which is not a very good sign for Frederick’s marriage, I have to assume). Nevertheless, based on Antone, the trial court dismissed Frederick’s lawsuit against his lawyer as time-barred. The Minnesota Court of Appeals affirmed.

Many might challenge my advocacy on this issue, pointing out that I have brought several plaintiff’s side legal malpractice cases (and have several pending). I concede that I have a bias. On the other hand, I have never heard anyone articulate a persuasive argument in favor of the Antone decision and I am still waiting.

The obvious argument in support of the result in Antone is that, in theory, a lawyer could provide services in Year #1 and client could sustain an injury in Year #51, leading the lawyer to face liability for advice given 50 years earlier even when there is a six-year statute of limitation.

I think responses to that argument include: (1) These were not the facts in Antone nor the facts in Frederick. Such a scenario, should it ever be confronted by a court, should be evaluated at that time. It should not provide the rationale to throw out cases that are quite distinguishable; and (2) Under certain circumstances, a lawyer can give bad advice or faulty legal services with actual knowledge that the results of such bad advice or faulty legal services will not likely come to fruition within six years. Imagine, for example, a young person hiring an incompetent lawyer to draft the young person’s will (or the set-up of a trust, as in this Montana case) In that scenario, do Minnesota courts really think that the Minnesota legislature intended to bar Minnesota citizens claims for malpractice because of the general six-year statute of limitation for tort claims? How is that fair or just?


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