Original Post (August 3, 2011): Regular readers of Minnesota Litigator will be very familiar with the legal malpractice case that Michael Afremov has been fighting against the New Hampshire law firm of Sulloway & Hollis and individual lawyers of that firm, now pending before U.S. District Court Patrick J. Schiltz and U.S. Mag. Judge Janie S. Mayeron.
The allegations, in a nutshell, are that Afremov’s lawyers conjured up a fraudulent income tax return for Afremov as part of a defense in Afremov’s litigation with former business partners at AGA Medical and, when the chickens came home to roost for Afremov in this ill-considered (criminal) coop, Afremov’s defense lawyers purported to continue to represent Afremov when they knew or should have known they themselves faced criminal liability and had an unwaivable conflict of interest precluding their on-going representation of Afremov (and, all the while, they collected millions of dollars in legal fees from Afremov).
The picture has been looking quite bleak for Sulloway & Hollis defendants for some time. The defense remains tenacious, however, although the pay-off for their vigorous defense remains to be seen.
Aside from the schadenfreude that the woes of others sometimes elicit in others who feel professionally, ethically, or morally superior (rightly or wrongly), the latest Afremov installment has an aspect of broader interest in regard to the legal standard applied by U.S. District Court Judges for the District Court of Minnesota on the decisions of their formidable Magistrate Judge colleagues.
As all practitioners know, the standard is “extremely deferential.”
Specifically, the objector must show the Magistrate Judge’s decision is “clearly erroneous or contrary to law.”
It is commonly understood that the “clear error” standard refers to factual findings and “contrary to law” refers to legal findings. As to the later phrase, the phrase “contrary to law,” it is commonly is held to indicate “plenary review as to matters of law.” In other words, it is probably easier to flip the Magistrate Judge’s ruling on a legal issue than a factual one because the District Court applies a standard quite close to (or equal to?) a “de novo” review for questions of law — a blank slate in which the Magistrate Judge’s opinion gets no deference.
Interestingly, however, U.S. District Court Judge Patrick J. Schiltz (D. Minn.) overruled Sulloway & Hollis defendants’ objections to Mag. Judge Mayeron’s legal determinations, not by independently agreeing that Judge Mayeron ruled correctly on the legal questions but, rather, because the legal questions were “close questions on which reasonable judges would likely disagree.”
In other words, the reasoning appears to be, “because it is a hard question, one cannot conclude that Judge Mayeron was wrong,” and therefore the defendants’ objections were rejected. This, in turn, highlights the indeterminacy of the law — Judge Mayeron’s decisions were not “wrong” because the law gives no one right answer.
This may be an example of refreshing candor as to the law’s indeterminacy, an example of how deferential U.S. District Court judges are wont to be for their Magistrate colleagues in the District of Minnesota, and, finally, as Sulloway & Hollis defendants may believe, and example of how they just cannot seem to cut a break in this case.