We recently concluded a legal malpractice lawsuit (Johnson et al. v. Biersdorf, et al.) in which counsel for the defendant lawyers argued that the defendant lawyers could not be liable for professional negligence because the underlying litigation, which the defendant lawyers had spear-headed, was a total loser. We characterized the position as doubling-down on incompetence: Not only did the lawyers foul up the case by missing a critical deadline but, they argued, when they sued in the first place, it was an unwinnable case (which, we argued, was not how they had advised their clients).) Thus, they argued, they could not be held liable for missing the critical deadline (or for the tens of thousands of dollars of fees that they billed their client).
That is, defense counsel argued that a plaintiff claiming professional malpractice against a Minnesota lawyer in connection with their conduct in litigation could never succeed or recover anything if the underlying litigation was unwinnable.
One can only bring a lawsuit for “litigation malpractice,” they argued, if the malpractice plaintiff can show that “but for” the lawyer’s malfeasance, the malpractice plaintiff would have won the underlying case (this is the so-called case-within-a-case model of a legal malpractice claim).
We strongly objected. What if lawyers encouraged their clients to undertake completely bogus lawsuits from the get-go (without informed consent, of course, which would be a different story)? No claim for professional malpractice ever, under any circumstances? Defense counsel was adamant that this is the law in Minnesota.
Of course, in our view, this argument was dead wrong.
The courts seem to agree with us.
This week, for example, the Minnesota Court of Appeals affirmed a malpractice case against attorney Herbert Igbanugo for several immigration claims that he handled that were D.O.A. The plaintiffs were not obligated to prove that “but for” Mr. Igbanugo’s malfeasance, they would have obtained better results. They could not have gotten better results. Mr. Igbanugo’s apparent malpractice was the undertaking of (and charging money for) their destined-for-failure cases.
We are happy that a “too-incompetent (or devious)-to-be-liable defense” seems to be a losing defense to a claim for professional negligence in Minnesota.