Update (September 3, 2015): This post started as a “land mine” warning for Minnesota trust and estate lawyers: a cautionary tale emphasizing the importance of giving sound legal advice to clients, not just forwarding them legal forms to sign without giving them any legal advice.
The post ends by being a “land mine” warning for plaintiff’s-side legal malpractice lawyers…
The Minnesota Supreme Court has revived the trial court’s decision in favor of a trusts and estates lawyer who appears to have processed a client’s power-of-attorney (“POA”) form without any consultation at any time with the client. The beneficiary of that POA form (the “attorney-in-fact”) then took all of the client’s money. The trial court threw the plaintiff’s legal malpractice claim case out.
The Minnesota Supreme Court, like the trial court, found that plaintiff’s expert failed to give any detailed opinion as to how the lawyer’s sloppiness caused the plaintiff’s loss. In other words, maybe if the trust/estate lawyer defendant had walked his client through all of the implications of the POA and all of the risks of the POA as drafted, maybe the decedent would still have executed it? The plaintiff’s expert failed to address or eliminate that possibility.
Of greatest interest in this week’s opinion is Justice Lillehaug’s concurrence (joined by Justice Page). In a nutshell, I would describe the concurrence as saying that the majority’s opinion is correctly decided based on current Minnesota law but current Minnesota law in cases of professional malpractice is deeply flawed and needs to be fixed. I agree. The law, as it stands, places fatal land mines around a procedural rule (a requirement of an “expert disclosure”) by imposing a distinction between “minor deficiencies,” which a plaintiff is allowed to address and correct and “major deficiencies,” which a plaintiff is foreclosed from addressing.
As a practical matter, this means that professional malpractice defense lawyers (who are almost always retained by insurance companies, who have a great deal more specific subject matter expertise than most plaintiffs’ professional malpractice lawyers) can exploit their edge to get meritorious plaintiffs’ cases thrown out of court before anyone has a chance to evaluate the merit of the plaintiffs’ cases. It’s sad and unfortunate in my opinion. On the brighter side, it sure keeps our professional malpractice insurance premiums low.