• December 5, 2011


The Afremov v. Sulloway & Hollis legal malpractice litigation is part-M.C. Escher, part-Elmer Gantry, part-Dante’s Inferno, and part-Lewis Carroll.  Followers of the case vacillate between disbelief, amusement, confusion, and despair.  This past week, Judge Mayeron waded into the hellish hall of mirrors in an effort to navigate the disputes of attorney-client privilege and attorney work product doctrine.

One of the few things we can say with certainty is that there was a tax fraud at the core of the case.  The questions arising, as this case evolves, appear to be whether the defendant law firm and lawyers were duped and misled by a malefactor client to believe a fairly preposterous tale to conceal tax-fraudulent conduct, or whether the defendant law firm and lawyers were co-conspirators from the outset (or at some point along the line), and, if so, whether, somehow, the malefactor could have been oblivious to the fact that his lawyers were his co-conspirators, or whether the malefactor can sue his co-conspirator-lawyers for having simultaneously acted as his lawyers, if he was fully aware at all relevant times that they were both his lawyers and his co-conspirators.

The answers after the break…

Minnesota Litigator will not likely be on the jury of the trial of this matter nor will Minnesota Litigator be able to shadow the trial from the peanut gallery.  So, instead of waiting to hear and see the evidence, the author will do what we generally do in our lives — which is reach conclusions “from the gut,” based on speculation, supposition, biases, and general experience.  (To be crystal clear, this is a disclaimer. This is good faith speculation about a matter of public interest and readers must recognize that.  Nothing on this post is intended to state anything as “fact.”)

My guess is that Afremov made up this fanciful tale with the active participation of his lawyer, Defendant LaFond, and, in the great tradition of many conspiracies, they closed ranks up to and until it became preferable to one of them (Mr. Afremov) to “defect” or turn on his former allies.

If this were the reality somewhere within the smoky hall of mirrors that is the Afremov legal malpractice case, then the core legal question would be whether the defendants’ conduct would constitute actionable “legal malpractice.”

Does co-conspiring in a crime in the context of providing legal representation constitute legal malpractice?  (It is certainly not a common type.)

Can one give one’s informed consent to his lawyer for the lawyer to co-conspire in the commission of a crime?

Can one sue a lawyer because he played along with one’s fraud and everyone got caught?

Will Afremov testify that he fabricated a story along with his lawyers and, at some point, somehow did not realize that his lawyers/co-conspirators were in something of a pickle as the perimeter tightened around their embattled hideaway?  If things were as they are speculated here, can Afremov sue his lawyer for failing to withdraw from representation when Afremov, himself, allowed LaFond or perhaps even urged the LaFond, to stick around and play along?

Afremov’s retention of another lawyer, Doug Kelley, and his communications with this other lawyer could very possibly blow open the factual questions and lead to the legal questions that come to the fore once the facts are established.  This, in turn, is the subject of a huge amount of work shown in Mag. Judge Mayeron’s order last week.

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