• March 17, 2011

Let’s say your lawyer tells you to report kickbacks you received from business associates on your tax returns as down payments for Persian rugs you’re buying for business associates.  Sound okay?  He’s a lawyer, right? It’s got to be ok, no?  He’s your trusted legal counsel.

It is not ok.

Let’s say the feds start poking around your suspicious tax returns and you hire separate criminal defense counsel.  You’re still working with your trusted lawyer from whom (you allege) you got the less-than-helpful advice that got you into the mess in the first place.  And the feds have their sights on your trusted lawyer as well as you.  So your trusted lawyer hires his own lawyers.   And you, with the knowledge of your criminal defense lawyer, agree to foot the trusted lawyer’s legal bills during this unfortunate turn of events (while of course paying your own freight with your criminal defense lawyer).

Can you later turn around and sue for malpractice and disgorgement of the fees you paid your lawyer to pay his lawyer?  Or does the fact that you’ve hired the separate defense counsel (who, it is alleged, knows the feds are eying client and “trusted attorney” both) work to bar such a claim?  Is this what one might call passing the buck?  (In which direction?)  No causation as a matter of because of redundancy? (You can’t claim your sagging pants were caused by a defective belt, when you’re also wearing suspenders, right?)

Regular readers of Minnesota Litigator know the above hypothetical reflects allegations in the Afremov legal malpractice lawsuit that Minnesota Litigator has trailed from afar for some time now.

This week defendants brought their promised motion for partial summary judgment.

Civil litigators will learn from the discussion in the brief of Minn. Stat. § 544.42, Minnesota’s “expert affidavit” statute (for professionals other than “health care providers” who get their very own Minnesota statute).   Defendants take their run at plaintiff’s expert, Prof. Richard Painter, of the University of Minnesota Law School.  After all, he’s “merely” a Harvard, Yale Law School-educated tenured Law Professor, author, and chief ethics lawyer for the President of the United States, 2005-2007.

What does he know about Persian rugs?  Seriously, how much “practice” does a lawyer have to have under his belt to offer an opinion of “malpractice”?  That is for U.S. Judge Patrick J. Schiltz (D. Minn.) to decide.

Leave a Reply

Your email address will not be published. Required fields are marked *